         [Cite as State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267.]




                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




THE STATE OF OHIO,                                   :             APPEAL NO. C-110097
                                                                   TRIAL NO. B-1006414
       Appellee,                                     :

  v.                                                 :                   O P I N I O N.

WILLIAMS,                                            :

       Appellant.                                    :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 9, 2011


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for appellee.

Christine Y. Jones, for appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS



        CUNNINGHAM, Judge.

        {¶ 1}    Following a bench trial, defendant-appellant, Damonta L. Williams,

appeals from the conviction and sentence imposed for having a weapon under disability.

A police officer searching a vehicle in which Williams had been a passenger found a loaded

handgun on the floor of the rear seat that Williams had occupied. In four assignments of

error, Williams argues that the state employed constitutionally defective prior convictions

to demonstrate that he was under a disability and challenges the weight and sufficiency of

the evidence adduced to establish that he had constructively possessed the handgun. He

also asserts, in a single assignment of error, that the sentence imposed was excessive. We

find none of the assignments to be meritorious and thus affirm the trial court’s judgment.

                              I.      A Gun on the Car Floor

        {¶ 2}    On the evening of September 19, 2010, Ashleigh Schnetzer, the owner of a

navy blue, four-door Monte Carlo automobile, picked up her friend, Stephanie

Stinespring, and her three-year-old daughter. Stinespring buckled her daughter into a

child seat located on the rear passenger’s-side seat.    While in Finneytown, Schnetzer

asked Williams to accompany the three to meet Stinespring’s boyfriend in Cleves.

Williams sat in the rear driver’s-side seat.

        {¶ 3}    Officer Matt Pies of the Cleves police department observed Schnetzer’s

Monte Carlo stop near a gas station. Several persons were standing near the vehicle.

While the individuals continued to talk, Schnetzer parked her vehicle in the gas-station

parking lot. Suspecting that a drug sale was occurring, Officer Pies approached. When he

reached the vehicle, the adult occupants had already gotten out. Officer Pies asked

Schnetzer for permission to search the vehicle, and she gave her consent. The officer

quickly discovered a loaded 9-mm Hi Point semiautomatic pistol on the floor of the rear




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                        OHIO FIRST DISTRICT COURT OF APPEALS



driver’s-side seat that Williams had just vacated. The handgun was found to have been

stolen several months before from a Kentucky home.

        {¶ 4}   Williams was arrested and charged in a three-count indictment with

receiving stolen property, carrying a concealed weapon, and having a weapon under a

disability.   Among other prior convictions, Williams had been twice convicted of

misdemeanor marijuana possession. Under R.C. 2923.13(A)(3), the state employed these

prior drug convictions to demonstrate that Williams had been under a disability

preventing his legal possession of a firearm.

        {¶ 5}   At the conclusion of the bench trial, the trial court found Williams guilty of

all three offenses. The court afforded Williams the protections of the multiple-count

statute and imposed a single conviction for having a weapon under disability. The trial

court ordered a five-year sentence of imprisonment with credit for time already served.

This appeal followed.

                         II.    Uncounseled Prior Convictions

        {¶ 6}   Williams raises an initial challenge to the sufficiency of the evidence

adduced to support his conviction for having a weapon under disability. He argues that

under the rule of State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024,

his conviction must be reversed because the state attempted to prove the disability

element of the offense by recourse to two prior misdemeanor drug convictions that had

been obtained without the assistance of counsel. We disagree.

        {¶ 7}   R.C. 2923.13(A)(3) provides that no person shall knowingly acquire, have,

carry, or use a firearm while under disability. When, as here, the existence of a prior

conviction elevates the degree of the crime in question, it “transforms the crime itself by

increasing its degree” and is an essential element of the offense that must be proved by the




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                        OHIO FIRST DISTRICT COURT OF APPEALS



state. Brooke at ¶ 8; see also State v. Allen (1987), 29 Ohio St.3d 53, 54, 506 N.E.2d 199

(an element elevates the degree of the offense; an enhancement provision increases only

the penalty). Because Williams’s prior drug convictions were an element of the weapon-

under-disability offense, the state bore the burden of proving the existence of one of

those convictions beyond a reasonable doubt. Brooke at ¶ 8.

        {¶ 8}    The state argues that it discharged that burden. At all times pertinent

to Williams’s prosecution, a conviction for misdemeanor drug possession was sufficient to

create a disability preventing the legal possession of a firearm. See State v. Robinson, 187

Ohio App.3d 253, 2010-Ohio-543, 931 N.E.2d 1110, ¶ 20.            We note that, effective

September 30, 2011, R.C. 2923.13(A)(3) now requires that a prior drug conviction be a

felony offense to qualify as a disability.

        {¶ 9}    At the beginning of this trial, the parties stipulated that Williams had

been twice convicted of misdemeanor drug-possession offenses.                  See former

Cincinnati Municipal Code 910-23. Williams’s two prior convictions were memorialized

in State’s Exhibit 5: certified copies of the “judge’s sheets,” one for each conviction. See

R.C. 2945.75(B)(1).       While Williams stipulated to the existence of the prior

convictions, he argued before the trial court, as he argues here, that they were

constitutionally defective and thus could not have been used to prove a firearm

disability. The trial court, at Williams’s urging, and relying upon the judge’s sheets,

took judicial notice that the prior convictions were uncounseled. Nonetheless, the

trial court proceeded with the trial and ultimately found that the state had

successfully demonstrated the disability element by means of the stipulated

misdemeanor drug convictions.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶ 10} A defendant may not ordinarily attack past convictions in a

subsequent criminal prosecution. See, e.g., State v. Perry (1967), 10 Ohio St.2d 175,

226 N.E.2d 104, paragraph nine of the syllabus. But there is a limited right to attack

a prior conviction when the state proposes to use that conviction as an element of a

subsequent criminal offense. See Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863

N.E.2d 1024, at ¶ 9; see also State v. Culberson (2001), 142 Ohio App.3d 656, 660-

661, 756 N.E.2d 734. It is the defendant’s burden to prove a constitutional defect in a

prior conviction by a preponderance of the evidence. See R.C. 2945.75(B)(3). If the

defendant cannot discharge this burden, we presume the constitutional regularity of the

prior proceeding. See State v. Thompson, 121 Ohio St.3d 250, 2009-Ohio-314, 903

N.E.2d 618, ¶ 6.

       {¶ 11} In Brooke, the Ohio Supreme Court acknowledged that “[a] conviction

obtained against a defendant who is without counsel, or its corollary, an uncounseled

conviction obtained without a valid waiver of the right to counsel,” is constitutionally

defective under the Sixth Amendment. Brooke at ¶ 9, citing State v. Brandon (1989), 45

Ohio St.3d 85, 86, 543 N.E.2d 501, and Nichols v. United States (1994), 511 U.S. 738, 114

S.Ct. 1921. But so long as no imprisonment is imposed in a criminal conviction, the

constitutional right to counsel does not obtain. See Scott v. Illinois (1979), 440 U.S. 367,

373-374, 99 S.Ct. 1158; see also Nichols v. United States, 511 U.S. at 746-747, 114 S.Ct.

1921. Thus, a prior conviction is constitutionally defective when it results in a sentence of

incarceration for a defendant who was unrepresented and did not validly waive his right to

an attorney. See Thompson, syllabus.

       {¶ 12} Here, Williams has failed to carry his burden to prove a constitutional

defect by a preponderance of the evidence. Williams was able to establish, by means of




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                      OHIO FIRST DISTRICT COURT OF APPEALS



the trial court’s judicial notice, only that the prior convictions were obtained without

the assistance of counsel. Williams made no showing that he had not validly waived

his right to counsel in the prior proceedings.

       {¶ 13} Even assuming for purposes of argument that the trial court’s judicial

notice had subsumed that waiver, we must presume the constitutional regularity of the

prior proceedings. Neither of the stipulated judge’s sheets reflects the imposition of a

sentence of incarceration. The judge’s sheet, in the case numbered 08CRB-2944,

reflects that the trial court had accepted Williams’s guilty plea and had found him guilty.

The sentence imposed was a fine of $50 plus costs. In the case numbered 06CRB-12904,

also resolved by guilty plea, the only punishment reflected was that the costs of $85 had

been remitted. Because the prior convictions did not result in sentences of incarceration

for Williams, they were not constitutionally defective. The fifth assignment of error is

overruled.

                   III.    More Than Mere Proximity to the Gun

       {¶ 14} In three interrelated assignments of error, Williams challenges the weight

and sufficiency of the evidence adduced to support his conviction for having a weapon

under disability. See R.C. 2923.13(A)(3). “To ‘have’ a firearm within the meaning of

the weapons-under-a-disability statute, the offender must actually or constructively

possess it.” State v. English, 1st Dist. No. C-080827, 2010-Ohio-1759, ¶ 31; see also State

v. Hankerson (1982), 70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus.

       {¶ 15} In State v. Thomas, 1st Dist. No. C-020282, 2003-Ohio-1185, we

summarized that “[c]onstructive possession exists when an individual exercises

dominion and control over an object, even though that object may not be within his

immediate physical possession. The person must be ‘conscious of the presence of the




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                      OHIO FIRST DISTRICT COURT OF APPEALS



object.’ ” Id. at ¶ 9, quoting State v. Hankerson (1982), 70 Ohio St.2d 87, 91, 434

N.E.2d 1362. Both dominion and control and whether a person was conscious of the

presence of a firearm may be proved by circumstantial evidence.               See State v.

Trembly (2000), 137 Ohio App.3d 134, 141, 738 N.E.2d 93; see also English, 2010-

Ohio-1759, at ¶ 32.

       {¶ 16} In these assignments of error, Williams argues that the state failed to

prove that he had constructively possessed the handgun found on the car floor. Relying

upon this court’s 2010 decision in State v. Mitchell, Williams asserts that there was no

evidence connecting him to the handgun other than his proximity to it, and that

“[p]roximity to an object alone does not constitute constructive possession * * *.”

190 Ohio App.3d 676, 2010-Ohio-5430, 943 N.E.2d 1072, ¶ 5.

       {¶ 17} Our review of the entire record fails to persuade us that the trial court,

acting as the trier of fact, clearly lost its way and created such a manifest miscarriage of

justice that the convictions must be reversed and a new trial ordered. See State v.

Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. This is not an “exceptional

case in which the evidence weighs heavily against the conviction.” See State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. The state adduced ample evidence that

Williams had constructively possessed the handgun. Our holding in Mitchell is readily

distinguishable.

       {¶ 18} In Mitchell, we reversed the marijuana-possession conviction of the

accused, a passenger in the back seat of a car stopped by police. The driver and

front-seat passenger each fled when their vehicle was stopped and “were not

questioned about the marijuana.”        190 Ohio App.3d 676, 2010-Ohio-5430, 943

N.E.2d 1072, at ¶ 3. Officers discovered marijuana in the backseat pocket only inches




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                       OHIO FIRST DISTRICT COURT OF APPEALS



from Mitchell’s seat. Mitchell denied any knowledge of the marijuana. See id. at ¶ 2.

Noting the absence of other evidence and that others in the vehicle could have had

access to the seat pocket, we concluded that the state had failed to prove constructive

possession. Id. at ¶ 6.

       {¶ 19} As in State v. Mitchell, here, the contraband—a loaded handgun—had

been found within inches of where the accused had been sitting. Williams admitted sitting

in the rear driver’s-side seat before exiting the vehicle. As had Mitchell, Williams denied

any knowledge of how the contraband came to be located at his feet.

       {¶ 20} But unlike in State v. Mitchell, this was not the entirety of the state’s

evidence. First, the other adult occupants of the vehicle testified at trial. Both denied that

the gun was theirs. The driver-owner, Schnetzer, stated that the gun had not been in the

vehicle before she had stopped for Williams. Before Schnetzer picked Williams up, the

front-seat passenger, Stinespring, had spent two or three minutes in the back of the

vehicle strapping her daughter into a car seat. She testified that she had not seen the gun

on the floor during those minutes.

       {¶ 21} Yet when the arresting officer looked into the back seat of the car after the

group was stopped in Cleves, he spotted the handgun almost immediately. “As soon as I

kneeled down [outside the rear driver’s-side door],” Officer Pies testified that he “could see

the black chunky grip and the back of the slide of [the Hi Point].” The officer did not have

to move the seat forward to observe the gun, which was only partially obscured by the

driver’s seat. The weapon’s presence on the floor, barrel facing forward, readily visible

from the doorway, indicates that it had been hastily placed on the floor sometime after

Stinespring had placed her child in the car seat. See State v. Berger (Feb. 19, 1998), 8th

Dist. No. 71618.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶ 22} Moreover, both Schnetzer and Officer Pies testified that a lip on the car

floor beneath the driver’s seat would have prevented the driver from sliding the handgun

under her seat to its final, exposed position at Williams’s feet.

        {¶ 23} Thus, the state adduced evidence that the handgun had not been in the car

before Williams had joined the other occupants, that Williams had had physical control

over the area where the handgun was found, and that the other adult occupants had not

had ready access to that area thereafter. While mere presence near a firearm does not

establish constructive possession, presence coupled with these facts probative of

dominion, control, and consciousness of presence can. See Thomas, 2003-Ohio-

1185, at ¶ 13; see also State v. Priest, 2nd Dist. No. 24225, 2011-Ohio-4694, ¶ 43.

        {¶ 24} During the cross-examination of Williams, the state introduced evidence

that Williams had been convicted the year before of carrying a concealed weapon, also a 9-

mm Hi Point pistol. The trial court stated that it employed that evidence for the purpose

of evaluating Williams’s credibility and his character for truthfulness. See Evid.R.

609; see also State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754. Because the

weight to be given to the evidence in this case and to the credibility of the witnesses was

for the trier of fact to determine, the trial court was entitled to believe Schnetzer’s,

Stinespring’s, and Officer Pies’s testimony and to reject Williams’s contention that the gun

was not his and that his feet were too big to have permitted him to place the gun on the car

floor. See State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of

the syllabus. The second assignment of error is overruled.

        {¶ 25} When reviewing the legal sufficiency of the evidence to support a

criminal conviction, we must examine the evidence admitted at trial in the light most

favorable to the prosecution and determine whether the evidence could have convinced




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                       OHIO FIRST DISTRICT COURT OF APPEALS



any rational trier of fact that the essential elements of the crime were proven beyond a

reasonable doubt. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d

996, ¶ 36; see also Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781. In deciding

whether the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of the witnesses, as both are functions reserved for the trier of fact. See State v.

Willard (2001), 144 Ohio App.3d 767, 777-778, 761 N.E.2d 688; see also State v.

Campbell, 1st Dist. No. C-100427, 2011-Ohio-3458.

       {¶ 26} Here, the record reflects substantial, credible evidence from which the

trier of fact could have reasonably concluded that all elements of the charged crime had

been proved beyond a reasonable doubt, including that Williams had constructively

possessed the handgun. See Thomas, 2003-Ohio-1185, at ¶ 13; see also Conway at ¶ 36.

The first assignment of error is overruled.

       {¶ 27} Moreover, the trial court also could have properly denied Williams’

motion for judgment of acquittal, as reasonable minds could have reached different

conclusions as to whether each element of the crime charged had been proved beyond a

reasonable doubt. See Crim.R. 29; see also State v. Bridgeman (1978), 55 Ohio St.2d 261,

381 N.E.2d 184. The third assignment of error is overruled.

       {¶ 28} We note that in these three assignments of error, Williams also argues

that the trial court erred in finding him guilty of receiving stolen property and carrying a

concealed weapon. Although it entered findings of guilt as to each offense, the trial court

did not impose a sentence for them. Thus, it has not entered a judgment of conviction as

to these offenses. See Crim.R. 32(C); see also State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, 922 N.E.2d 182, ¶ 12 (“a ‘conviction’ consists of a guilty verdict and the

imposition of a sentence or penalty”). Although the resolution of the possession




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                      OHIO FIRST DISTRICT COURT OF APPEALS



issue is factually germane to each of the three offenses, we possess the authority to

affirm, reverse, or modify only the trial court’s judgment of conviction entered on the

having-a-weapon offense. See State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330,

893 N.E.2d 163, syllabus.

                      IV.    The Sentence Was Not Excessive

       {¶ 29} Finally, Williams argues that the trial court erred in imposing an excessive

sentence. After affording Williams the protections of the multiple-count statute and not

imposing sentences for the receiving-stolen-property and the carrying-a-concealed-

weapon offenses, the trial court imposed a single, five-year sentence of imprisonment for

the weapon-under-disability offense. The sentence imposed was not contrary to law. See

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 14. It was within

the statutory range specified for a third-degree felony under R.C. 2929.14(A)(3). In light

of the seriousness of the offense, Williams’s criminal record, and the fact that Williams

had been on community control for a previous carrying-a-concealed-weapon conviction

when Officer Pies apprehended him, we cannot say that the trial court abused its

discretion in imposing sentence. See Kalish at ¶ 17. The fourth assignment of error is

overruled.

       {¶ 30} Therefore, the judgment of the trial court is affirmed.

                                                                        Judgment affirmed.

SUNDERMANN, P.J., and FISCHER, J., concur.




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