[Cite as State v. Jones, 2020-Ohio-1007.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                     No. 18AP-541
v.                                                :               (C.P.C. No. 15CR-2207)

Desiree C. Jones,                                 :           (REGULAR CALENDAR)

                 Defendant-Appellant.             :



                                            D E C I S I O N

                                     Rendered on March 17, 2020


                 On brief: Ron O'Brien, Prosecuting Attorney, and Daniel J.
                 Stanley, for appellee. Argued: Daniel J. Stanley.

                 On brief: Siewert & Gjostein Co. LPA, and Thomas A.
                 Gjostein, for appellant. Argued: Thomas A. Gjostein.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Desiree C. Jones, appeals a May 30, 2018 judgment
entered by the Franklin County Court of Common Pleas by which she is convicted of
obstruction of justice with a firearm specification and having a weapon under disability.
The trial court sentenced Jones to 36 months in prison for her convictions. Jones' two
assignments of error in this appeal (claiming ineffective assistance of counsel for not filing
a motion to suppress and that her convictions for obstructing justice and having a weapon
under disability were based on insufficient evidence and were against the manifest weight
of the evidence) are not well-taken and are overruled. We thus affirm the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On May 5, 2015, a Franklin County Grand Jury indicted Jones for tampering
with evidence, obstruction of justice, and having a weapon while under disability. (May 5,
2015 Indictment.) The tampering and obstruction charges were accompanied by one-year
No. 18AP-541                                                                                              2


firearm specifications for having control of a firearm while committing the offense. Id.
Jones pled "not guilty" and, after the failure of plea negotiations, on January 30, 2018 a
trial began in the case. (July 24, 2015 Plea Form; Tr. at 1-35.1)
        {¶ 3} Jones waived jury as to the weapon under disability offense but the remaining
counts and specifications were tried to a jury. (Tr. at 36-37.) At trial, six witnesses
testified—the lead detective in the case, a crime scene search detective, two crime lab
workers, a records custodian who monitors telephone calls made from the Franklin County
jail, and Jones herself. Because many factual issues in this case ultimately are uncontested,
we factually focus on the testimony of three witnesses, the lead detective, a crime lab worker
who was qualified as an expert in DNA analysis, and Jones.
        {¶ 4} The first witness to testify was the lead detective in the case, Ronda Siniff.
(Tr. at 70.) Siniff testified that on March 16, 2016 she was called to 177 Fountain Lane
where officers discovered the body of an elderly woman, Anna Ferriman, who had been
shot and then set on fire. (Tr. at 71-72; State's Ex. F5.) Jones' son, Jeremay Jones, was
arrested near the scene and a gun was recovered near where he was arrested. (Tr. at 157-
58.) Ballistics testing determined that the gun found at the time of Jeremay's2 arrest was
the gun that fatally shot Ferriman. (Tr. at 73-74.) The officer who arrested Jeremay
apparently observed two suspects together and, faced with the inability to pursue both,
chose to pursue Jeremay. (Tr. at 158.) The second suspect in the death of Ferriman has
not been identified. (Tr. at 78.)
        {¶ 5} The detective testified (and another witness subsequently confirmed) that
calls from the Franklin County jail are recorded and reviewed. (Tr. at 80, 222-30.) Siniff
explained that she listened to a number of calls between Jeremay and his mother. (Tr. at
84-88.) Three of these calls were played during trial and were introduced as exhibits. (Tr.
at 92-122; State's Exs. A1, A2, A3.)
        {¶ 6} In one of the calls, Jeremay read a portion of the indictment against him to
his mother. (Tr. at 100-02.) Based on a misinterpretation of language defining an
"occupied structure" in relation to the offense of aggravated burglary, Desiree Jones

1 The transcript of trial and all ancillary proceedings in this case was filed in four consecutively paginated

volumes on January 25, 2019. Because of the consecutive pagination, we cite it merely by page number and
omit the volume reference.
2 Because Desiree Jones and her son, Jeremay Jones, share a last name, for the sake of clarity we have elected

to refer to Jeremay Jones by his first name. No informality is intended.
No. 18AP-541                                                                            3


concluded that the police had a witness to the murder Jeremay had committed. (Tr. at 102.)
The following detailed conversation ensued:
               DESIREE JONES: Then they got a witness. They got a witness.

               JEREMAY JONES: I don't - - I don't - - is that what that mean?
               I don't think that's what it said. I'm just thinking it means when
               her and the person other than her.

               DESIREE JONES: No, what they saying is they got a - - they
               saying that they got somebody to testify against you, that's what
               that person, the witness, means. That they got somebody there
               that can say that they were there at the scene of the incident,
               that can say what happened. So now what I need you to do is, I
               hope you ordered some envelopes because I need you to write
               me some names down. I know you saying your boy know what's
               up, but I need you - -

               JEREMAY JONES: Mom, I need you to stop talking as much
               because this shit is still - - or anyhow.

               DESIREE JONES: Right.

               JEREMAY JONES: I know what you're talking about.

               DESIREE JONES: Yeah, I mean, I know, I'm not saying
               nothing that's going to incriminate you. I'm just saying you
               need to write me a letter about everything, that's where it is
               right now. So that I can take it further. They trying to say they
               got somebody - - they trying to say - - the reason why they can
               indict you is because basically the number one thing they got is
               a person.

               JEREMAY JONES: Uh-huh.

               DESIREE JONES: So now I need you to write me and tell - -

               JEREMAY JONES: Got you.

               DESIREE JONES: I mean, you know what I'm saying?

               JEREMAY JONES: I got you. I got you.

(Tr. at 102-04.)
       {¶ 7} Next in her testimony, Siniff identified a recording of a call that was played
for the jury where Jeremay gave his mother detailed directions to a vacant lot near the home
where he murdered Ferriman. (Tr. at 109-17, 171-72.) Both sides of the conversation make
No. 18AP-541                                                                          4


it appear that Jones was driving to the site and retrieved a gun (other than the murder
weapon, which was already in the custody of police):
               DESIREE JONES: I'm currently rolling down Country Club.

               JEREMAY JONES: You make that right on that first street
               behind that little auto shop, behind the UDF and shit make a
               right.

               DESIREE JONES: Oh, nope, I got to turn around. I was waiting
               for you to call back and I proceeded down Country Club.

               JEREMAY JONES: Yeah, it was the first street to the right.

               [interruption in playback to identify the participants]

               DESIREE JONES: I got to turn around, turn around, turn
               around. (Unintelligible). Okay. You said I'm turning right
               behind the UDF?

               JEREMAY JONES: Well, if you turned - - if you turned around,
               it's going to have to be a left.

               DESIREE JONES: Okay.

               JEREMAY JONES: But it's if you                  going    notice   it
               (unintelligible), it's like the last strip.

               DESIREE JONES: Am I supposed to be turning into this donut
               place thing is right here? I'm at this - -

               JEREMAY JONES: It's like a car shop?

               DESIREE JONES: Yeah, am I supposed to turn this brake shop
               thing?

               JEREMAY JONES: No. No. No. No, you going on the street
               back there on the street.

               DESIREE JONES: Okay. Hold on.

               JEREMAY JONES: Like if you would have turned on Country
               Club from Main.

               DESIREE JONES: Uh-huh.

               JEREMAY JONES: If you look at the Country Club from Main
               where the UDF at, make a right on the first street. It like a little
No. 18AP-541                                                                            5


               - - it like a little grassy, little area right there on the right-hand
               side, on the corner, like a grassy area.

               DESIREE JONES: So I turn left on the Country Club and then
               right on the first street coming from the Country Club?

               JEREMAY JONES: Coming from Main, yeah.

               DESIREE JONES: Okay. I got that. Okay. I busted the right
               (unintelligible).

               JEREMAY JONES: But you turned on that street?

               DESIREE JONES: Yeah. And then it's got a street to the left or
               keep straight?

               JEREMAY JONES: Keep straight. Go down to the bend, drive
               down to the bend and - - and pull into the bend in little, it's like
               a cul-de-sac looking thing, it's like a half a cul-de-sac, pull in
               there and you going to see a walkway through like in a yard.
               You can tell it used to be a yard and the house burnt down, that
               house is tore down, it's like a bunch of trees and shit. You can
               tell it's like a walkway and a path.

               DESIREE JONES: Okay. So coming up to the ever pine you
               said I'm supposed to be coming up to something that was like
               a little cul-de-sac?

               JEREMAY JONES: Yeah, you see it?

               DESIREE JONES: Up to the right, right here.

               JEREMAY JONES: Yeah.

               DESIREE JONES: And on Taylor Avenue.

               JEREMAY JONES: Yep.

               DESIREE JONES: Okay. Am I supposed to go up to one of
               these houses or something?

               JEREMAY JONES: No, just park on the cul-de-sac, you see that
               yard where some - - them trees is at, but there ain't no house
               right there?

               DESIREE JONES: Yeah.

               JEREMAY JONES: It's the only one - - park in front of that and
               then walk through the little cut.
No. 18AP-541                                                                         6


               DESIREE JONES: Okay. Okay. So walk into the cut.

               JEREMAY JONES: All right. You see the little path, where the
               path will naturally take you?

               DESIREE JONES: Yeah, the red - - little red (unintelligible).

               JEREMAY JONES: Yeah, the little bristle, little road.

               DESIREE JONES: Yeah.

               JEREMAY JONES: All right. Walk up a bit.

               DESIREE JONES: Am I supposed to (unintelligible).

               JEREMAY JONES: Naw, but the fence should be boarded up
               unless somebody kicked it back out. You don't got to go past
               that though.

               DESIREE JONES: Like - -

               JEREMAY JONES: Somebody kicked it back out?

               DESIREE JONES: Yeah.

               JEREMAY JONES: All right. Stop. Now, make a little - - look
               to the right, do you see like a board right there like a - - like a
               table or something, it look like a table?

               DESIREE JONES: Oh, wait a minute, it ain't kicked out, they
               did board it back up.

               JEREMAY JONES: All right.

               DESIREE JONES: Okay.

               JEREMAY JONES: But do you see the little, like a table little
               thing like a fence, like a fence that was broke down?

               DESIREE JONES: Yeah.

               JEREMAY JONES: Walk - -

               DESIREE JONES: Yeah.

               JEREMAY JONES: Walk until your feet stop at like where the
               fence begin at, okay.

               DESIREE JONES: Okay.
No. 18AP-541                                                                      7


               JEREMAY JONES: You stop right there and it's like - - do it
               look like you could put you - -

               DESIREE JONES: (Unintelligible).

               JEREMAY JONES: Huh?

               DESIREE JONES: So don't - - so don't go through this little
               cubbyhole?

               JEREMAY JONES: Don't go through the cubbyhole, look down
               at your right foot, where your right foot would be at but on the
               other side of that fence.

               DESIREE JONES: Look at my right foot and the other side, but
               don't go through it.

               JEREMAY JONES: Don't go through it, just look over it and
               look down where your right foot would be at, it should be right
               there.

               DESIREE JONES: Okay.

               JEREMAY JONES: Yeah?

               DESIREE JONES: Yeah.

               JEREMAY JONES: Okay.

               DESIREE JONES: Yeah.

               JEREMAY JONES: Yeah?

               DESIREE JONES: Yeah.

               JEREMAY JONES: All right.

               DESIREE JONES: Okay.

               JEREMAY JONES: Be careful though, be careful, all right.

               DESIREE JONES: Uh-huh.

               JEREMAY JONES: And you going to have to put some oil on
               it.

               DESIREE JONES: Okay.
No. 18AP-541                                                                         8


               JEREMAY JONES: All right. That's all, yeah. And do whatever
               you got - - do whatever you got to do with that.

               DESIREE JONES: Okay. Okay. Is this the main?

               JEREMAY JONES: Huh?

               DESIREE JONES: This the main?

               JEREMAY JONES: The what?

               DESIREE JONES: The main?

               JEREMAY JONES: What you mean?

               DESIREE JONES: The main?

               JEREMAY JONES: The main one?

               DESIREE JONES: Yes.

               JEREMAY JONES: No, they got it.

               DESIREE JONES: Oh.

               JEREMAY JONES: That's another one.

               DESIREE JONES: Okay. Okay. (Unintelligible).

               JEREMAY JONES: All right. Now, like I - - let me think. Let
               me think. Let me think. At the end of the day - - at the end of
               the day whatever you do with it ain't nobody going to be able to
               (unintelligible) ain't nobody goin to be able to use it until they
               take it apart. And I'll teach you how to take it apart over the
               phone.

               DESIREE JONES: (Unintelligible).

               JEREMAY JONES: Huh?

               DESIREE JONES: I said leave it alone.

               JEREMAY JONES: All right. Well, you see the name on it side
               of it, YouTube it and find out the way I don't got - - you feel me?
               Just YouTube it and find out.

               DESIREE JONES: Right. I'm just coming out, I'm just trying to
               note, I see a car at the end of the street pulling off. You know
               me, I'm just - - you know me, I'm just over cautious.
No. 18AP-541                                                                                                   9


                 JEREMAY JONES: Right. No, you're supposed to be.

                 DESIREE JONES: Yeah. So I just want to go totally the
                 opposite direction of how you came in (unintelligible) I'm going
                 to figure it out.

(Tr. at 109-18.)
        {¶ 8} After reviewing this third telephone conversation between Jeremay and his
mother, Siniff traced the route described. (Tr. at 134-35; State's Exs. B1-B2, C1-C11.) She
also obtained a search warrant for Jones' home and executed the warrant. (Tr. at 147-48.)
During the search, the police found a loaded gun with a model name and number imprinted
on the side. (Tr. at 149-50, 152, 205.) The crime scene search detective and Siniff testified
that the gun was found inside a purse on the top shelf of a closet in the same bedroom where
police recovered the cellular telephone to which the jail calls had been placed. (Tr. at 205;
Tr. at 181-82; State's Ex. G1 at 3.) The gun bore light rust in the gap between the slide and
the lower receiver.3 (Tr. at 150-51.) A crime lab worker testified later in the trial and
confirmed that the gun, despite the rust, was operable. (Tr. at 195-96; State's Ex. D.)
        {¶ 9} Although Siniff agreed that law enforcement personnel were not
investigating Jeremay for any crimes other than those for which he was indicted, she
explained that they were still looking for an additional suspect and were interested in any
other weapons that might have been involved in the aggravated burglary and murder of
Ferriman. (Tr. at 184-87.) Specifically, Siniff agreed that the police knew there was likely
another person involved in the robbery and murder of Ferriman and that person may also
have possessed a firearm. (Tr. at 186.)
        {¶ 10} The final witness to testify for the State was an expert in DNA and biology
with the crime lab. (Tr. at 236-37.) She testified that gun grips, being porous or textured,
are generally good surfaces from which to collect DNA and that, with modern technology,
they often get so much DNA from such surfaces, that they obtain DNA from most people
who have ever touched the gun. (Tr. at 243-44.) However, she said they obtained no
useable DNA data from the gun recovered from Jones' home. (Tr. at 245-47.) She testified
that sometimes DNA is recovered from items left out in the elements for several days. (Tr.



3 The photographs of the pistol (State's Exs. S32-S34) do   not show the rust. However, it is visible on a physical
inspection of the weapon. (State's Ex. T2.)
No. 18AP-541                                                                            10


at 248.) She agreed that wiping a gun, oiling it, or placing it in a cloth bag could wipe DNA
off of it. (Tr. at 248-49.)
       {¶ 11} The final witness to testify in the case was Jones. She admitted that, while on
the phone with her son, intending to help him if she could, she drove out to the lot where
the gun had been placed. (Tr. at 276-78, 295.) She said, however, that she changed her
mind about picking it up when asked her son if it was the "main one." Id. at 278. She said
at that point she began thinking of her other three children and did not want to mess up
her nice clothing by going into the underbrush. Id. at 278-79, 291-92. Consequently, she
did not retrieve the gun. Id. However, she said she carried on the charade of having
retrieved the gun with Jeremay on the phone in order to allay his temper and placate him.
(Tr. at 291-94.)
       {¶ 12} Regarding the gun found in her home, Jones said that shortly after her
mother died in 2010, Jones was involved in an abusive relationship with a man. (Tr. at
283-84.) When she forced him to leave her home, he attempted to have her arrested by
calling the police and planting presumably contraband items in her house while the police
where there. (Tr. at 284-86.) She theorized that the gun was left behind by him as part of
that plot. Id. She said the purse in which the gun was found had belonged to her mother
and she denied looking inside the purse since the time of her mother's death in 2010. (Tr.
at 286-87.)
       {¶ 13} On cross-examination, Jones eventually admitted that, in a jail call she made
while being held in this case, she asked the caller whether the officers who had searched her
house had dumped the purses out. (Tr. at 317-19.) She also admitted stating that she knew
there "was a BB gun [in] there," but simultaneously denied knowing what was in the purse
that contained the firearm. Id. She later clarified that Jeremay had a BB gun and she
thought it was in the house. (Tr. at 328-29, 334.) She claimed to have been concerned
about the purses being emptied out because she wanted to know what the searchers had
done to her room and was concerned about some money she had collected to help Jeremay
pay legal expenses. (Tr. at 326-29.)
       {¶ 14} In closing, the defense argued that Jones was telling the truth—that she had
gone to the site where the gun was located but had not taken action. (Tr. at 387.) As the
defense put it, the jury had to "decide whether or not she took action. If she did, you have
No. 18AP-541                                                                              11


to convict her." Id. But the defense argued that she had abandoned her criminal purpose
and aborted her mission to retrieve the gun. Id. Following closings, the trial court released
Jones (who was still on bond) for lunch. (Tr. at 439.) Jones never returned from lunch and
when the verdict was announced in court, it was publicly read in her absence. (Tr. at 443-
53.)
       {¶ 15} On May 24, 2018, after Jones was arrested on a warrant, the trial court
reconvened to address three matters—the trial of the weapon under disability charge, a plea
to a new charge of failure to appear, and sentencing for all convictions. (Tr. at 460.) The
parties stipulated to Jones' prior disqualifying record underlying the weapon under
disability charge, and the trial court found Jones guilty of having a weapon under disability.
(Tr. at 461-66.) Jones then pled guilty on the new failure to appear case. (Tr. at 466-67,
474.) The trial court concluded that the tampering and obstruction charges merged under
the facts of this case and the prosecution elected to proceed on the obstruction charge. (Tr.
at 482-83.) Ultimately, the court sentenced Jones to serve 18 months for obstruction, plus
a consecutive 12 months for the firearm specification, and a concurrent 12 months for the
weapon under disability offense. (Tr. at 501-03.) The court ordered Jones to serve that 30-
month prison term consecutively to 6 months it imposed on the failure to appear case. Id.
       {¶ 16} Jones now appeals.
II. ASSIGNMENTS OF ERROR
       {¶ 17} Jones raises two assignments of error:
               [1.] THE APPELLANT HAD HIS [sic] RIGHTS TO DUE
               PROCESS OF LAW VIOLATED UNDER ARTICLE I, SECTION
               10 OF THE OHIO CONSTITUTION AND THE SIXTH
               AMENDMENT OF THE UNITED STATES CONSTITUTION,
               IN BEING COMPELLED TO STAND TRIAL WHEN TRIAL
               COUNSEL RENDERED INEFFECTIVE FOR FAILING TO
               FILE A MOTION TO SUPPRESS THE SEARCH WARRANT
               EXECUTED IN THIS CASE.

               [2.] APPELLANT'S CONVICTION [sic] WAS [sic] NOT
               SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE IN
               VIOLATION OF THE DUE PROCESS CLAUSE OF THE
               FOURTEENTH       AMENDMENT      TO    THE      U.S.
               CONSTITUTION AND ARTICLE I, SECTIONS 1 & 16 OF THE
               OHIO CONSTITUTION, AND THE CONVICTION[sic] WAS
               [sic] ALSO AGAINST THE MANIFEST WEIGHT OF THE
               EVIDENCE.
No. 18AP-541                                                                            12


III. DISCUSSION
   A. First Assignment of Error – Whether Trial Counsel was Ineffective in
      not Filing a Motion to Suppress
       {¶ 18} Ineffective assistance of counsel claims are assessed using the two-pronged
approach set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). "First, the
defendant must show that counsel's performance was deficient. * * * Second, the defendant
must show that the deficient performance prejudiced the defense." Id. at 687. "In
evaluating counsel's performance, 'a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances the
challenged action "might be considered sound trial strategy." ' " State v. Roush, 10th Dist.
No. 12AP-201, 2013-Ohio-3162, ¶ 37, quoting Strickland at 689, quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955). To show that a defendant has been prejudiced by
counsel's deficient performance, the "defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland at 694; see also State v. Griffin, 10th Dist. No. 10AP-902,
2011-Ohio-4250, ¶ 42, quoting State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three
of the syllabus.    "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland at 694.
       {¶ 19} Particularly on the topic of whether counsel becomes ineffective by failing to
file a motion to suppress, the Supreme Court of Ohio has explained:
               Failing to file a motion to suppress does not constitute
               ineffective assistance of counsel per se. State v. Madrigal
               (2000), 87 Ohio St.3d 378, 389, 2000 Ohio 448, 721 N.E.2d 52,
               quoting Kimmelman v. Morrison (1986), 477 U.S. 365, 384,
               106 S.Ct. 2574, 91 L.Ed.2d 305. To establish ineffective
               assistance of counsel for failure to file a motion to suppress, a
               defendant must prove that there was a basis to suppress the
               evidence in question. State v. Adams, 103 Ohio St.3d 508,
               2004 Ohio 5845, 817 N.E.2d 29, ¶ 35.

State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 65.
       {¶ 20} Not only does Jones not "prove that there was a basis to suppress" the
evidence discovered during the warrant search of her home, she does not even suggest a
basis for such a motion. (Jones' Brief at 4, 8.) Rather, she merely argues that, had a motion
No. 18AP-541                                                                                13


to suppress been filed, the question of the admission of the evidence "would have been
placed before the Trial Court to decide if the rights of Appellant were prejudiced." Id. at 4.
We find nothing in the appellate record that would permit us to conclude that Jones'
counsel should have filed a motion to suppress and especially on what evidentiary grounds.
Jones' first assignment of error is overruled.
   B. Second Assignment of Error – Whether Jones' Conviction for
      Obstruction and Having a Weapon Under Disability were Insufficiently
      Supported or Against the Manifest Weight of the Evidence
       {¶ 21} In her second assignment of error, Jones appears to allege that all three of
the offenses for which she was indicted were not supported by sufficient evidence and were
against the manifest weight of the evidence. (Jones' Brief at 9.) However, the plaintiff-
appellee, State of Ohio, did not elect to proceed at sentencing against Jones on the first
count in the indictment for tampering with evidence. (May 30, 2018 Jgmt. Entry at 1.) This
was because the trial court determined tampering with evidence to be an allied offense to
obstruction of justice as charged in Count 2 of the indictment. Id.; see also Tr. at 482-84.
Thus, although the indictment contained two counts for the same conduct and although
Jones was found guilty of both, she was "convicted of only one." R.C. 2941.25(A). Hence,
we consider only whether her convictions for obstructing justice and having a weapon
under disability were sufficiently supported or against the manifest weight of the evidence.
       {¶ 22} The Supreme Court has "carefully distinguished the terms 'sufficiency' and
'weight' * * *, declaring that 'manifest weight' and 'legal sufficiency' are 'both quantitatively
and qualitatively different.' " Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,
¶ 10, quoting State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the syllabus.
               Weight of the evidence concerns "the inclination of the greater
               amount of credible evidence, offered in a trial, to support one
               side of the issue rather than the other. * * * . Weight is not a
               question of mathematics, but depends on its effect in inducing
               belief."

(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387; Black's Law Dictionary 1594
(6th Ed.1990). In manifest weight analysis, "the appellate court sits as a 'thirteenth juror'
and disagrees with the jury's resolution of the conflicting testimony." Thompkins at 388,
quoting Tibbs v. Florida. 457 U.S. 31, 42 (1982). " 'The court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses and
No. 18AP-541                                                                           14


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.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist. 1983).
       {¶ 23} In contrast, sufficiency is:
               "[A] term of art meaning that legal standard which is applied to
               determine whether the case may go to the jury or whether the
               evidence is legally sufficient to support the jury verdict as a
               matter of law." * * * In essence, sufficiency is a test of adequacy.
               Whether the evidence is legally sufficient to sustain a verdict is
               a question of law.

Eastley at ¶ 11, quoting Thompkins at 386; Black's at 1433. "In reviewing a record for
sufficiency, '[t]he 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. Monroe, 105 Ohio
St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d 259 (1991)
paragraph two of the syllabus.
       {¶ 24} As relevant to this case, obstructing justice is defined as follows:
               (A) No person, with purpose to hinder the discovery,
               apprehension, prosecution, conviction, or punishment of
               another for crime or to assist another to benefit from the
               commission of a crime, * * * shall do any of the following:

               ***

               (4) Destroy or conceal physical evidence of the crime or act[.]

               ***

               (B) A person may be prosecuted for, and may be convicted of
               * * * a violation of division (A) of this section regardless of
               whether the person * * * aided ultimately is apprehended for *
               * * committing the crime or act * * *. The crime or act the
               person* * * aided [] shall be used under division (C) of this
               section in determining the penalty for the violation of division
               (A) of this section, regardless of whether the person * * * aided
               ultimately is apprehended for * * * committing the crime or act
               the person* * * aided [].

               (C)
No. 18AP-541                                                                             15


               (1) Whoever violates this section is guilty of obstructing justice.

               ***

               (4) Except as otherwise provided in division (C)(6) of this
               section, if the crime committed by the person aided is
               aggravated murder, murder, or a felony of the first or second
               degree * * * and if the offender knows or has reason to believe
               that the crime committed by the person aided is one of those
               offenses * * *, obstructing justice is a felony of the third degree.

R.C. 2921.32(A), (B), and (C).
       {¶ 25} Jones argues that she never admitted to having picked up the gun; the audio
recording contains no extraneous noises to suggest that she crunched through brush or
shifted rubble to pick up something, and that she shut down her son's attempts to tell her
how to disassemble and clean it by telling him to "leave it alone." (Jones' Brief at 12-13.)
Jones concludes that these observations render the evidence against her so thin that "[t]he
clear and rational inference would have been for this jury, rather, any jury to have seen
through this lack of evidence." Id. at 13. We disagree.
       {¶ 26} The evidence established, and Jones admitted, that she drove out near the
scene of the murder with the intent to help her son by retrieving a weapon. (Tr. at 109-18,
276-78, 295.) Although it was not the murder weapon, its proximity to the scene and the
fact that her son wanted her to retrieve it, all created an inference that it was used somehow
in the offense against Ferriman and was potentially incriminating, if not directly of him,
then perhaps of an accomplice. (Tr. at 73-74, 78, 157-59, 184-87.) Jones asserted that she
then renounced that purpose when she asked her son if it was the "main," meaning the one
used to kill Ferriman. (Tr. at 278-79, 291-94.) While it is true that the audio recording does
not include soft background sounds such as Jones walking through the overgrown lot, it
also does not include other soft background sounds such as the car's engine or turn signal
as Jones drove. (State's Ex. A3.) Yet, Jones admitted that she was driving during much of
the telephone call. (Tr. at 276-78, 295.) Moreover, balanced against Jones' testimony that
she never picked up the gun are two simple facts: First, when the police searched the same
location her son described to her they found no gun. (Tr. at 134-41, 147-49; State's Exs. B1-
B2, C1-C11.) Second, when the police searched her house, they found a gun that visibly
showed some evidence of superficial rust. (Tr. at 148-51, 205; State's Exs. S32-S34, T2.)
No. 18AP-541                                                                            16


       {¶ 27} To explain the gun that was found in the search of her home, Jones offered a
theory that an abusive ex-lover had hidden the gun in her house years before in an attempt
to frame her. (Tr. at 283-87.) She claimed that she had never discovered it in the years
since because, even though the purse containing the gun was in the center of the top shelf
in her closet, she had not looked in it since her mother died in 2010. Id.; State's Exs. S29-
S30. However, this theory was disrupted when, on cross-examination during the trial, she
was confronted with a recorded telephone call she placed from jail in which she inquired
whether officers who searched her home had dumped the purses out and stated that she
knew there was a BB gun "[in] there." (Tr. at 317-19.)
       {¶ 28} Under the circumstances "viewing the evidence in a light most favorable to
the prosecution," we conclude that a "rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt." Monroe at ¶ 47. In addition,
weighing the evidence, considering credibility, and drawing inferences the way a juror
might, we do not agree that the factfinder here " 'clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.' " Thompkins at 387, quoting Martin at 175. Consequently, we find that Jones'
conviction for obstruction was sufficiently supported and was not against the manifest
weight of the evidence.
       {¶ 29} The crime of having a weapon while under a disability is defined in relevant
part as follows:
               Unless relieved from disability * * * no person shall knowingly
               acquire, have, carry, or use any firearm or dangerous ordnance,
               if any of the following apply:

               ***

               (2) The person * * * has been convicted of any felony offense of
               violence * * * .

R.C. 2923.13(A)(2). Jones stipulated that she had been convicted of a disqualifying offense
of violence. (Tr. at 461-62.) She offers no separate arguments as to this offense beyond
those offered above about why the evidence did not establish that she picked up (and
knowingly acquired or carried) the gun. (Jones' Brief at 12-13.) Those urgings are just as
unavailing in this context as in the context of obstruction of justice. See supra at ¶ 25-28.
No. 18AP-541                                                                             17


Thus, we find that Jones' convictions were sufficiently supported and not against the
manifest weight of the evidence.
       {¶ 30} We overrule Jones' second assignment of error.
IV. CONCLUSION
       {¶ 31} The record provides no evidence on which Jones could rely to establish that
her trial counsel rendered ineffective assistance when he failed to file a motion to suppress
because Jones did not present any basis upon which evidence should have been suppressed
in this case. Jones' testimony does not affect the legal determination of her guilt for either
the sufficiency or manifest weight of the evidence against her for obstruction of justice and
having a weapon while under a disablility. Therefore, we overrule Jones' two assignments
of error and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.
                        KLATT and BEATTY BLUNT, JJ., concur.
