[Cite as State v. Newton, 2014-Ohio-1958.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :

v.                                                  :                 No. 13AP-500
                                                                   (C.P.C. No. 12CR-1462)
Nicholas J. Newton,                                 :
                                                                 (REGULAR CALENDAR)
                 Defendant-Appellant.               :


                                             D E C I S I O N

                                       Rendered on May 8, 2014


                 Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
                 for appellee.

                 Yeura Venters, Public Defender, and Timothy E. Pierce, for
                 appellant.

                 APPEAL from the Franklin County Court of Common Pleas
TYACK, J.

        {¶ 1} Defendant-appellant, Nicholas J. Newton ("appellant"), is appealing from
his conviction on charges of aggravated murder with a firearm specification, robbery,
carrying a concealed weapon, and tampering with evidence. He assigns three errors for
our consideration:
                 First Assignment of Error: Appellant was subjected to an
                 illegal arrest on January 7, 2012. All evidence seized as a
                 result thereof should have been suppressed pursuant to the
                 Fourth and Fourteenth Amendments of the United States
                 Constitution and Article I, Section 14 of the Ohio
                 Constitution.

                 Second Assignment of Error: Appellant's conviction for
                 aggravated murder was not supported by the sufficiency of
                 the evidence.
No. 13AP-500                                                                                  2


               Third Assignment of Error: Appellant's convictions on
               all counts were not supported by the manifest weight of the
               evidence.

        {¶ 2} To fully understand the first assignment of error, an understanding of the
pertinent facts is necessary. We, therefore, address the second and third assignments of
error first.
        {¶ 3} Sufficiency of the evidence is the legal standard applied to determine
whether the case should have gone to the jury. State v. Thompkins, 78 Ohio St.3d 380,
386 (1997). In other words, sufficiency tests the adequacy of the evidence and asks
whether the evidence introduced at trial is legally sufficient as a matter of law to support a
verdict. Id. "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 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307
(1979). The verdict will not be disturbed unless the appellate court finds that reasonable
minds could not reach the conclusion reached by the trier of fact. Jenks at 273. If the
court determines that the evidence is insufficient as a matter of law, a judgment of
acquittal must be entered for the defendant. See Thompkins at 387.
        {¶ 4} Even though supported by sufficient evidence, a conviction may still be
reversed as being against the manifest weight of the evidence. Thompkins at 387. In so
doing, the court of appeals, sits as a " 'thirteenth juror' " and, after " '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.' " Id. (quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist.1983)); see also Columbus v. Henry, 105 Ohio App.3d 545, 547-48 (10th
Dist.1995). Reversing a conviction as being against the manifest weight of the evidence
should be reserved for only the most " 'exceptional case in which the evidence weighs
heavily against the conviction.' " Thompkins at 387.
        {¶ 5} As this court has previously stated, "[w]hile the jury may take note of the
inconsistencies and resolve or discount them accordingly, see [State v.] DeHass [10 Ohio
No. 13AP-500                                                                                3

St.2d 230 (1967)], such inconsistencies do not render defendant's conviction against the
manifest weight or sufficiency of the evidence." State v. Nivens, 10th Dist. No. 95APA09-
1236 (May 28, 1996). It was within the province of the jury to make the credibility
decisions in this case. See State v. Lakes 120 Ohio App. 213, 217 (4th Dist.1964), ("It is
the province of the jury to determine where the truth probably lies from conflicting
statements, not only of different witnesses but by the same witness.")
       {¶ 6} See State v. Harris, 73 Ohio App.3d 57, 63 (10th Dist.1991), (even though
there was reason to doubt the credibility of the prosecution's chief witness, he was not so
unbelievable as to render verdict against the manifest weight).
       {¶ 7} The testimony at trial developed the following facts.
       {¶ 8} Katrina Butts was walking home from a local market when she was
approached by a man later identified as appellant. Appellant asked for a light for a
cigarette, but Butts declined. As she walked further, she noticed appellant was following
her.
       {¶ 9} When she got to her home and was walking up the steps, a second man ran
up and grabbed her purse. They struggled over the purse. Butts called for her boyfriend,
Barry Windle, to help her. The two began searching for her purse which had been
wrestled from her. While looking for her purse, they encountered appellant and began to
question him about the theft of the purse. Appellant refused to answer and produced a
rifle. Appellant then shot Windle, who died from the wound.
       {¶ 10} In the early stages of the investigation of the shooting, the shooter's identity
was not known.      However, the rifle was found and eventually appellant's DNA was
discovered on the stock of the rifle.
       {¶ 11} Langston Garrett was learned to have been the man who wrestled with
Butts and actually stole the purse. He became a witness for the government in Newton's
trial. He testified that he and appellant discussed following Katrina Butts and taking her
purse. Garrett fled after getting the purse, but heard gunshots while he ran away with the
purse. Garrett claimed appellant later told him he shot someone on the day of the
robbery.
No. 13AP-500                                                                                4

        {¶ 12} Sabrina Baker was a girlfriend of appellant's who also testified against him.
She stated that appellant told her he shot someone, but claimed the shooting was
accidental. Appellant claimed the person he shot had attacked him first.
        {¶ 13} Putting this testimony together, appellant and Garrett conspired to steal the
purse of Katrina Butts. While Garrett was running away with the purse, appellant shot a
man who approached him trying to get information about the theft which had just
occurred.
        {¶ 14} Robbery for purposes of this case is defined by R.C. 2911.02, which reads:
               (A) No person, in attempting or committing a theft offense or
               in fleeing immediately after the attempt or offense, shall do
               any of the following:

               (1) Have a deadly weapon on or about the offender's person
               or under the offender's control;

               (2) Inflict, attempt to inflict, or threaten to inflict physical
               harm on another;

               (3) Use or threaten the immediate use of force against
               another.

               (B) Whoever violates this section is guilty of robbery. A
               violation of division (A)(1) or (2) of this section is a felony of
               the second degree. A violation of division (A)(3) of this
               section is a felony of the third degree.

               (C) As used in this section:

               (1) "Deadly weapon" has the same meaning as in section
               2923.11 of the Revised Code.

               (2) "Theft offense" has the same meaning as in section
               2913.01 of the Revised Code.

        {¶ 15} Garrett was fleeing immediately after stealing the purse, a theft offense. As
defined by R.C. 2911.02, the robbery offense was still occurring. Appellant used force at
that time by shooting Barry Windle. This made appellant also guilty of robbery.
        {¶ 16} The shooting of Windle at point blank range was sufficient to support a
guilty finding as to murder as defined by R.C. 2903.02(A) or (B). Those code sections
read:
No. 13AP-500                                                                            5

              (A) No person shall purposely cause the death of another or
              the unlawful termination of another's pregnancy.

              (B) No person shall cause the death of another as a proximate
              result of the offender's committing or attempting to commit
              an offense of violence that is a felony of the first or second
              degree and that is not a violation of section 2903.03 or
              2903.04 of the Revised Code.

       {¶ 17} Since under the facts of this case appellant was guilty of robbery and
murder, he was also guilty of aggravated murder as defined in R.C. 2903.01(B). R.C.
2903.01(B) reads:
              No person shall purposely cause the death of another * * *
              while committing or attempting to commit, or while fleeing
              immediately after committing or attempting to commit,
              kidnapping, rape, aggravated arson, arson, aggravated
              robbery, robbery, aggravated burglary, burglary, trespass in
              a habitation when a person is present or likely to be present,
              terrorism, or escape.

       {¶ 18} In short, the evidence was sufficient to support all the charges lodged
against appellant.
       {¶ 19} The second assignment of error is overruled.
       {¶ 20} The third assignment of error asks us to reweigh the evidence as to the
convictions. Given the testimony of Garrett and Baker, the identity of the shooter was
sufficiently established.   We cannot say the jury in any way lost its way in finding
appellant to be the shooter. The facts surrounding the theft of the purse and the shooting
were not in serious debate during the trial. The weight of the evidence clearly supported
the convictions, given the legal standards we must apply. Those standards were set forth
earlier.
       {¶ 21} The third assignment of error is overruled.
       {¶ 22} We now return to the first assignment of error and the facts developed in
the context of the motion to suppress filed before trial.
       {¶ 23} The rifle used to shoot Barry Windle was abandoned shortly after the
shooting. Appellant has no right protected under the Fourth Amendment to the U.S.
Constitution to abandoned property, including any DNA traces left on the rifle. The
No. 13AP-500                                                                             6

motion to suppress focused solely on the obtaining of a DNA sample or samples from
appellant to compare to the physical evidence.
       {¶ 24} A DNA swab was obtained after a motor vehicle in which appellant was a
passenger was stopped and the car's occupants detained. The testimony before the trial
court judge indicated that the car was stopped because the driver violated a traffic law.
Once the car was stopped, the driver was found to have no valid operator's license.
Appellant was not the driver.
       {¶ 25} The officers who stopped the vehicle claimed to have detected the odor of
marijuana smoke coming from the vehicle. As a result, the officers wanted to search the
car for controlled substances. Appellant and the other occupants were removed from the
vehicle so the search could proceed.
       {¶ 26} The resulting search found a loaded handgun under the driver's seat of the
car. This led to all the occupants of the car being taken to the police station.
       {¶ 27} Warrantless searches of motor vehicles are permitted when police have
probable cause to believe that the motor vehicle contains contraband. See for instance
Carroll v. United States, 267 U.S. 132 (1925) and the many cases which have followed it,
including Chambers v. Maroney, 399 U.S. 42 (1970), Collidge v. New Hampshire, 403
U.S. 443 (1971) and California v. Carneg, 471 U.S. 386 (1985).
       {¶ 28} The Supreme Court of Ohio has found that a police officer who recognizes
the odor of burning marijuana coming from the interior of a motor vehicle has probable
cause to search the interior of the vehicle. See State v. Moore, 90 Ohio St.3d 47, 2000-
Ohio-10.
       {¶ 29} The trial court appropriately analyzed this encounter as being a permissible
detention for purposes of a search for drugs, followed by a series of arrests once the
concealed firearm was found.
       {¶ 30} The firearm was stuffed under the carpet under the driver's seat. It was
most accessible to the persons in the backseat of the car. Appellant was in the backseat of
the car, although on the passenger side.         The weapon was more accessible to the
passenger next to appellant. We cannot disagree with the trial court's finding probable
cause to believe appellant possessed or aided and abetted in the possession of the
concealed firearm.
No. 13AP-500                                                                                 7

          {¶ 31} Possession means to have control over an object. The firearm was only a
few feet away from appellant. The firearm was readily accessible to the person seated
next to appellant. The firearm was also accessible to appellant, either through his asking
for the man next to him to hand it to him or from appellant merely bending over to his left
and grasping the firearm himself. Appellant had sufficient control over the firearm to
support a finding of probable cause to believe he committed the offense of carrying
concealed weapons in violation of R.C. 2923.12.
          {¶ 32} R.C. 2923.12(A) reads, in part:
                 A) No person shall knowingly carry or have, concealed on the
                 person's person or concealed ready at hand, any of the
                 following:

                 (1) A deadly weapon other than a handgun;

                 (2) A handgun other than a dangerous ordnance.

In short, police had probable cause to arrest appellant and to convey him to the police
station. The arrest was lawful, so the DNA sample obtained was not the fruit of an illegal
arrest.
          {¶ 33} Once at the police station, appellant signed a form permitting the police to
take a DNA swab. The evidence before the trial court supported the trial court's finding
the consent to obtain a DNA sample was knowing, intelligent and voluntary.
          {¶ 34} Under the circumstances, the DNA swab which linked appellant to the
crime was legally obtained by police. The trial court did not err in overruling the motion
to suppress.
          {¶ 35} The first assignment of error is overruled.
          {¶ 36} All three assignments of error having been overruled, the judgment of the
Franklin County Court of Common Pleas is affirmed.
                                                                        Judgment affirmed.

                            SADLER, P.J., and BROWN, J., concur.
