[Cite as State v. Peters, 2014-Ohio-1071.]




                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                   Nos. 13AP-748 and
v.                                                 :                   13AP-750
                                                                   (C.P.C. No. 13CR-1969)
David L. Peters,                                   :
                                                               (REGULAR CALENDAR)
                 Defendant-Appellant.              :




                                             D E C I S I O N

                                      Rendered on March 20, 2014


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

                 W. Joseph Edwards, for appellant.

                  APPEALS from the Franklin County Court of Common Pleas

DORRIAN, J.
        {¶ 1} Defendant-appellant, David L. Peters ("appellant"), appeals from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas pursuant to jury verdicts finding him guilty of carrying a concealed weapon and
having a weapon while under disability. Because we conclude that the convictions were
supported by sufficient evidence and were not against the manifest weight of the evidence,
we affirm.
        {¶ 2} On March 30, 2013, Detective Lawrence Gauthney of the Columbus
Division of Police Criminal Intelligence Unit was conducting surveillance in the area of
the Sunshine Market on North Meadows Boulevard in Franklin County, Ohio. Detective
Nos. 13AP-748 and 13AP-750                                                             2


Gauthney was positioned in an unmarked car using binoculars to observe the area. During
his surveillance, Detective Gauthney saw an individual named Juan Mandujano
("Mandujano"), whom he had previously arrested on charges related to drugs and
weapons. Detective Gauthney then saw appellant arrive in the area in an automobile.
Appellant exited the automobile and made contact with Mandujano. Mandujano lifted his
shirt, revealing a handgun, and then held the gun up. Appellant appeared to gesture for
the handgun and Mandujano gave it to him. Detective Gauthney testified at trial that
appellant placed the handgun in the waistband of his pants and then placed his shirt over
the gun. Appellant and Mandujano then got into the automobile. As this occurred,
Detective Gauthney contacted his partner, Detective Carlysle Coleman, to come to the
area.
        {¶ 3} After driving a short distance, appellant and Mandujano exited the vehicle.
Appellant got into an argument with an unknown individual. During the argument,
appellant held the handgun and gestured animatedly. After a brief time, appellant then
gave the handgun back to Mandujano. As Mandujano began to leave the area, marked
police cruisers called by Detective Gauthney arrived. Mandujano fled, and the police
officers pursued him to a nearby apartment. Mandujano was arrested in the apartment
and a loaded handgun was recovered from a bedroom closet.
        {¶ 4} Appellant was charged with one count of carrying a concealed weapon and
one count of having a weapon while under disability. At trial, the state presented
testimony from Detective Gauthney, Detective Coleman, and two other officers who were
involved in pursuing and arresting Mandujano. Appellant stipulated that a Columbus
Division of Police forensic scientist determined that the handgun recovered from
Mandujano was operable. Appellant also stipulated that he had a prior conviction for
felonious assault, a felony of the second degree. At the close of the trial, the jury found
appellant guilty on both charges. The trial court entered a judgment sentencing appellant
to three years' imprisonment on the conviction for carrying a concealed weapon and
eighteen months' imprisonment on the conviction for having a weapon while under
disability, with the sentences to be served consecutively.
        {¶ 5} Appellant appeals from the trial court's judgment, assigning a single error
for this court's review:
Nos. 13AP-748 and 13AP-750                                                                  3


              THE TRIAL COURT ERRED WHEN IT ENTERED
              JUDGMENT AGAINST THE APPELLANT WHEN THE
              JUDGMENT WAS NOT SUPPORTED BY THE MANIFEST
              WEIGHT OF THE EVIDENCE.

       {¶ 6} Although appellant's assignment of error asserts that the judgment was not
supported by the manifest weight of the evidence, the argument contained in his brief
relates to the sufficiency of the evidence. Therefore, we will consider both the sufficiency
and weight of the evidence presented at trial.
       {¶ 7} "Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th
Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d
380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate
court must determine "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, superseded by constitutional amendment on other grounds as
recognized in State v. Smith, 80 Ohio St.3d 89, 102 (1997).
       {¶ 8} "While sufficiency of the evidence is a test of adequacy regarding whether
the evidence is legally sufficient to support the verdict as a matter of law, the criminal
manifest weight of the evidence standard addresses the evidence's effect of inducing
belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25.
"When a court of appeals reverses a judgment of a trial court on the basis that the verdict
is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and
disagrees with the factfinder's resolution of the conflicting testimony." Thompkins at 387.
" 'The court, reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving the
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). This authority "should
be exercised only in the exceptional case in which the evidence weighs heavily against the
conviction." Thompkins at 387.
Nos. 13AP-748 and 13AP-750                                                             4


      {¶ 9} Appellant was convicted of carrying a concealed weapon, a fourth-degree
felony in violation of R.C. 2923.12. In relevant part, that law provides that "[n]o person
shall knowingly carry or have, concealed on the person's person or concealed ready at
hand, * * * [a] handgun." R.C. 2923.12(A)(2). Detective Gauthney testified that he saw
Mandujano give a handgun to appellant. He then saw appellant place the handgun in the
waistband of his pants and pull his shirt over it. Construing this evidence in a light most
favorable to the prosecution, a reasonable trier of fact could have found that appellant
knowingly had the handgun and concealed it on his person by pulling his shirt over the
handgun after placing it in the waistband of his pants, thereby establishing the essential
elements of the crime beyond a reasonable doubt. Therefore, we conclude that the
evidence was sufficient to support appellant's conviction for carrying a concealed weapon.
      {¶ 10} Further, we conclude that the jury did not clearly lose its way in finding
appellant guilty of carrying a concealed weapon. Appellant argues that Detective
Gauthney was using binoculars during his observation and was located at a distance from
appellant. However, the jury heard testimony from Detective Gauthney regarding his use
of binoculars and the approximate distance between him and appellant during the
incident. Therefore, the jury was able to consider this in weighing the credibility of his
testimony. Appellant also argues that there was no physical evidence directly linking him
to the handgun that the police recovered. However, this court has previously held that
witness testimony may be sufficient to support a conviction for carrying a concealed
weapon. See State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, ¶ 108-112 (10th
Dist.) (holding that eyewitness testimony was sufficient to support convictions for
murder, attempted murder, felonious assault, and carrying a concealed weapon, and that
the convictions were not against the manifest weight of the evidence); State v. Harris,
10th Dist. No. 02AP-977, 2003-Ohio-2414, ¶ 14-19 (holding that witness testimony was
sufficient to support conviction for carrying a concealed weapon and that the conviction
was not against the manifest weight of the evidence). Accordingly, we conclude that
appellant's conviction for carrying a concealed weapon was not against the manifest
weight of the evidence.
       {¶ 11} Appellant was also convicted of having a weapon while under disability, a
third-degree felony in violation of R.C. 2923.13. To establish this charge, the state was
Nos. 13AP-748 and 13AP-750                                                              5


required to prove that appellant knowingly acquired, had, carried, or used a firearm, and
had been convicted of a felony offense of violence. R.C. 2923.13(A)(2). As noted above,
appellant stipulated at trial that he was previously convicted of felonious assault. Thus,
the state needed to establish that appellant knowingly acquired, had, carried, or used a
firearm. Detective Gauthney testified that he saw appellant receive the handgun from
Mandujano and place it in the waistband of his pants, thus demonstrating possession of a
firearm. Further, both Detective Gauthney and Detective Coleman testified that they saw
appellant holding the handgun in his hand while arguing with an unknown individual.
This testimony could permit a reasonable trier of fact to conclude that the essential
elements of the crime of having a weapon while under disability were proven beyond a
reasonable doubt. Therefore, we conclude that the evidence was sufficient to support
appellant's conviction for having a weapon while under disability.
      {¶ 12} Detectives Gauthney and Coleman were each located some distance from
appellant and observed him through binoculars. However, as noted above, the jury was
aware of these factors, and the jurors were able to consider them in weighing the
credibility of the detectives' testimony. Further, the lack of physical evidence linking
appellant to the recovered handgun does not, by itself, preclude a conviction for having a
weapon while under disability. Courts have upheld convictions for having a weapon while
under disability in cases where the weapon was not recovered by police. See, e.g., State v.
Bloodworth, 9th Dist. No. 26346, 2013-Ohio-248, ¶ 16-22 (holding that witness
testimony was sufficient to support a conviction for having a weapon while under
disability in a case where no weapon was recovered); State v. White, 8th Dist. No. 90839,
2008-Ohio-6152, ¶ 8-16 (holding that witness testimony was sufficient to support
convictions for having a weapon while under disability and that convictions were not
against the manifest weight of the evidence in a case where no weapon was recovered).
After reviewing the evidence presented at trial, we cannot conclude that the jury clearly
lost its way in believing the testimony of Detectives Gauthney and Coleman and finding
appellant guilty of having a weapon while under disability. Accordingly, we conclude that
appellant's conviction for having a weapon while under disability was not against the
manifest weight of the evidence.
Nos. 13AP-748 and 13AP-750                                                          6


      {¶ 13} For the foregoing reasons, we overrule appellant's sole assignment of error
and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                   Judgment affirmed.
                       SADLER, P.J., and BROWN, J., concur.
                                  _____________
