[Cite as State v. Porter, 2019-Ohio-4482.]




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

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 28288
                                                   :
 v.                                                :   Trial Court Case No. 2018-CR-3953
                                                   :
 JAMES M. PORTER, JR.                              :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 1st day of November, 2019.

                                              ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

DAVID E. STENSON, Atty. Reg. No. 0042671, 131 North Ludlow Street, Suite 316,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

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

DONOVAN, J.
                                                                                         -2-


       {¶ 1} Defendant-appellant James M. Porter, Jr., appeals his conviction for the

following offenses: Count I, having weapons while under disability (prior offense of

violence), in violation of R.C. 2923.13(A)(2), a felony of the third degree; Count II,

improper handling of a firearm in a motor vehicle, in violation of R.C. 2923.16(B), a felony

of the fourth degree; and Count III, carrying a concealed weapon (loaded/ready at hand),

in violation of R.C. 2923.12(A)(2), a felony of the fourth degree. Porter filed a timely

notice of appeal with this Court on February 6, 2019.

       {¶ 2} The incident which formed the basis for Porter’s conviction occurred shortly

after 10:00 p.m. on October 10, 2018, when Kettering Police Officer Matthew Burian was

on routine patrol on East Stroop Road near Ackerman Boulevard. Officer Burian testified

that he observed a red Ford pickup truck traveling westbound on East Stroop Road.

Officer Burian performed a “random vehicle registration check” of the truck and

discovered that the vehicle’s registration had expired on May 22, 2018. At that point,

Officer Burian activated his overhead lights and siren and initiated a traffic stop of the

vehicle in the parking lot of a Kroger’s grocery store located on Stroop Road.

       {¶ 3} Officer Burian approached the vehicle on the driver’s side and made contact

with the driver and sole occupant, identified as Porter. Officer Burian testified that he

asked Porter for his driver’s license and proof of insurance. Porter gave Officer Burian

an expired Ohio temporary identification card and a second expired identification card

from California. Officer Burian testified that Porter stated that he did not have insurance

and that the vehicle was owned by his father. Officer Burian then went back to his cruiser

and entered Porter’s name into the LEADS system in order to check the status of his

driving privileges. Using LEADS, Officer Burian was able to determine that Porter did
                                                                                         -3-


not have any driving privileges in Ohio.         Additionally, Officer Burian was able to

determine that Porter had an active arrest warrant for a probation violation. At this point,

Kettering Officer Joshua Wolf arrived at the scene of the stop, and Officer Burian directed

Porter to exit the vehicle. Officer Burian placed Porter in handcuffs and put him in the

back of the police cruiser.

       {¶ 4} After Porter had been removed from the vehicle, Officer Wolf looked into the

interior of the vehicle and observed the butt of a handgun protruding from a pocket on the

driver’s door of the vehicle. Upon further inspection, the handgun was found to be

loaded. After the handgun was secured, Officer Wolf searched the passenger side of

the vehicle, where he discovered a black backpack containing a black jacket, a ski mask,

a wig, black gloves, and a brown unlabeled jar containing what was discovered to be

some type of acidic liquid. Officer Wolf also found bolt cutters and binoculars under the

passenger seat inside the vehicle. After Porter had been informed of his Miranda rights,

he admitted that the brown jar was his and that he used the bolt cutters “for work.” Tr. 43.

       {¶ 5} On November 8, 2018, Porter was indicted for the following offenses: Count

I, having weapons while under disability (prior offense of violence); Count II, improper

handling of a firearm in a motor vehicle; and Count III, carrying a concealed weapon

(loaded/ready at hand). At his arraignment on November 13, 2018, Porter stood mute,

and the trial court entered pleas of not guilty on his behalf.

       {¶ 6} On December 17, 2018, Porter filed a motion in limine seeking exclusion of

the black jacket, black backpack, ski mask, wig, black gloves, brown unlabeled jar

containing an acidic liquid, and bolt cutters. Porter also requested that the trial court

preclude any mention at trial of his prior conviction for felonious assault. The record
                                                                                          -4-


establishes that, prior to trial, the parties agreed to stipulate that Porter had previously

been convicted of felonious assault, an offense of violence.

       {¶ 7} The case proceeded to jury trial on January 8, 2019, and on January 9, 2019,

Porter was found guilty on all counts.1 At his disposition on January 24, 2019, the trial

court sentenced Porter to 24 months in prison for having weapons while under disability.

After merging Counts II and III, the trial court sentenced Porter to 18 months for Count III,

carrying a concealed weapon. The trial court ordered that the sentences be served

concurrently for an aggregate term of 24 months in prison.

       {¶ 8} It is from this judgment that Porter now appeals.

       {¶ 9} Porter’s first assignment of error is as follows:

       THE COURT ERRED WHEN IT ALLOWED IRRELEVANT INFORMATION,

       INFERENTIAL EVIDENCE, TO BE PRESENTED AT TRIAL, WHICH

       TAINTED THE JURY’S PERCEPTION OF THE DEFENDANT THEREBY

       PREJUDICING DEFENDANT.

       {¶ 10} In his first assignment, Porter contends that the trial court erred when it

permitted the State to introduce into evidence Exhibits 1-21, which were photographs of

the black jacket, black backpack, ski mask, wig, black gloves, brown unlabeled jar

containing an acidic liquid, and bolt cutters. Specifically, Porter argues that, by allowing

the items into evidence, the jury could “conclude [that] the items as whole indicated some

criminal mischief,” thereby prejudicing him. We note that the trial court admitted the

State’s photographic exhibits pursuant to Evid.R. 404(B), which states:



1We note that Officer Burian testified via deposition conducted before the trial court on
December 21, 2018.
                                                                                           -5-


      (B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts

      is not admissible to prove the character of a person in order to show action

      in conformity therewith. It may, however, be admissible for other purposes,

      such as proof of motive, opportunity, intent, preparation, plan, knowledge,

      identity, or absence of mistake or accident. In criminal cases, the proponent

      of evidence to be offered under this rule shall provide reasonable notice in

      advance of trial, or during trial if the court excuses pretrial notice on good

      cause shown, of the general nature of any such evidence it intends to

      introduce at trial.

      {¶ 11} Evid.R. 403(A) provides:

      Exclusion mandatory. Although relevant, evidence is not admissible if its

      probative value is substantially outweighed by the danger of unfair

      prejudice, of confusion of the issues, or of misleading the jury.

      {¶ 12} We have followed established precedent holding that Evid.R. 404(B) must

be strictly construed against the admissibility of other-bad-acts evidence. State v. Shaw,

2d Dist. Montgomery No. 21880, 2008-Ohio-1317, ¶ 10, citing State v. Broom, 40 Ohio

St.3d 277, 533 N.E.2d 682 (1988).       “The courts in Ohio have long recognized that

evidence of other crimes, wrongs or bad acts carries the potential for the most virulent

kind of prejudice for the accused.” Id. at ¶ 13.      The Supreme Court of Ohio has

established the following three-part test for the admission of Evid.R. 404(B) testimony:

      The first step is to consider whether the other acts evidence is relevant to

      making any fact that is of consequence to the determination of the action

      more or less probable than it would be without the evidence. Evid.R. 401.
                                                                                           -6-


       The next step is to consider whether evidence of the other crimes, wrongs,

       or acts is presented to prove the character of the accused in order to show

       activity in conformity therewith or whether the other acts evidence is

       presented for a legitimate purpose, such as those stated in Evid.R. 404(B).

       The third step is to consider whether the probative value of the other acts

       evidence is substantially outweighed by the danger of unfair prejudice. See

       Evid.R 403.

State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20.

       {¶ 13} The admission of other-bad-acts evidence under Evid.R. 404(B) “lies within

the broad discretion of the trial court, and a reviewing court should not disturb evidentiary

decisions in the absence of an abuse of discretion that has created material prejudice.”

State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 96, citing State

v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 66. “Prejudice occurs

if there is a reasonable possibility that the error might have contributed to the conviction.”

State v. Hardy, 2017-Ohio-7635, 97 N.E.3d 838, ¶ 65 (2d Dist.), citing State v. Cowans,

10 Ohio St.2d 96, 104-105, 227 N.E.2d 201 (1967).

       {¶ 14} At trial, the State had the burden to adduce evidence which established that

Porter was aware of the presence of the handgun in the pocket of the driver’s door of the

vehicle in which he was stopped. In addition to the handgun, Officer Wolf discovered a

black backpack containing a black jacket, a ski mask, a wig, black gloves, and a brown

unlabeled jar containing what was discovered to be some type of acidic liquid in the

passenger side of the vehicle.       Officer Wolf also found bolt cutters and a pair of

binoculars under the passenger seat. Porter admitted to the police that the brown jar
                                                                                         -7-


taken from the backpack was his and that he used the bolt cutters for work. Relying on

Evid.R. 404(B), the State argued to the trial court that Exhibits 1-21, which were

photographs of the black jacket, black backpack, ski mask, wig, black gloves, brown

unlabeled jar, and bolt cutters were admissible with respect to the issues of identity and

absence of mistake. Based upon his admissions regarding ownership of the bolt cutters

and the jar, a reasonable factfinder could have inferred that Porter used the vehicle

regularly and therefore was aware of any items in the vehicle, including the handgun.

       {¶ 15} Therefore, the photographic evidence of the additional contents of the

vehicle satisfied the first two elements set forth in Williams, 134 Ohio St.3d 521, 2012-

Ohio-5695, 983 N.E.2d 1278. With respect to the third prong of the Williams analysis,

exclusion of relevant evidence is mandatory where the “probative value [of the evidence]

is substantially outweighed by the danger of unfair prejudice, of confusion of the issues,

or of misleading the jury.” Evid.R. 403(A). For the evidence to be excluded on this basis,

“the probative value must be minimal and the prejudice great.” State v. Morales, 32 Ohio

St.3d 252, 257, 513 N.E.2d 267 (1987). The introduction of the additional photographic

evidence was relevant and not unfairly prejudicial to Porter.         Evidence regarding

additional items in the vehicle was highly probative as it established that Porter used the

vehicle regularly and thus had knowledge of what was in the vehicle, including the

handgun. Unfavorable evidence is not equivalent to unfairly prejudicial evidence. State

v. Bowman, 144 Ohio App.3d 179, 185, 759 N.E.2d 856 (12th Dist.2001). Accordingly,

we find the trial court did not err in admitting into evidence State’s Exhibits 1-21, as the

danger of unfair prejudice was minimal and the evidence was clearly probative of whether

Porter used the vehicle regularly and therefore had knowledge that the handgun was in
                                                                                             -8-


the pocket of the driver’s door.

       {¶ 16} Additionally, throughout the trial, the trial court repeatedly instructed the jury

that they were not to consider the photographs of the black jacket, black backpack, ski

mask, wig, black gloves, brown unlabeled jar, and bolt cutters “as it relates to any other

activity, [sic] they may consider these items as it relates to identification or lack of

mistake.” Furthermore, prior to deliberations, the trial court instructed the jury as follows:

              Trial Court: Evidence was also admitted of items from the truck other

       than the handgun associated with the charges herein. The other items in

       the truck were received only for a limited purpose.

              The items were not received and you may not consider those items

       to prove the character of the defendant in order to show that he acted in

       conformity or in accordance with that character. The evidence may be

       considered by you only for the purpose of deciding whether it proves the

       absence of mistake, the defendant’s opportunity to commit the offense or

       offenses charged in the indictment, defendant’s knowledge of the

       circumstances surrounding the offense or offenses charged in the

       indictment or the identity of the person who committed the offense or

       offenses charged in the indictment. The evidence cannot be considered

       for any other purpose.

Thus, it apparent from the record that the trial court admitted the photographs pursuant

to Evid.R. 404(B) for the sole purpose of establishing that Porter had knowledge that the

handgun was in the pocket of the driver’s door.

       {¶ 17} Lastly, Porter argues that the record establishes that he was prejudiced
                                                                                            -9-


because, during deliberations, the jury sent a question to the judge regarding whether

there was another cell phone in the vehicle with him.            We note that the trial court

responded to the jury’s question with the following answer: “[Y]ou must rely on your

collective memories as to the testimony.”

       {¶ 18} In support of his argument, Porter points out that State’s Exhibit 5 depicts a

cell phone sitting on the truck’s seat next to where he would have been sitting.

Additionally, State’s Exhibit 20 depicts a cell phone placed next to a handgun. Porter

argues that the jury’s question regarding the cell phone establishes that they were

confused about whether there were one or two cell phones found in the vehicle and that

he was therefore prejudiced by the introduction of the photographs of the cell phone(s).

We note that only one actual cell phone was introduced into evidence along with the two

photos.

       {¶ 19} Upon review, we find that the jury’s question regarding the possible

presence of an additional cell phone in the vehicle does not relate in any way to any

inferences regarding Porter’s character. While the evidence presented at trial regarding

the cell phone may have been somewhat confusing, its inclusion at trial was not prejudicial

to Porter. In light of the foregoing, we find that the trial court did not err when it admitted

the photographs of the additional items, and Porter was not prejudiced by their admission.

       {¶ 20} Porter’s first assignment of error is overruled.

       THE COURT ERRED IN FAILING TO THROW OUT THE TRAFFIC STOP

       AS IT VIOLATED APPELLANT’S FOURTH AMENDMENT RIGHTS, AS IT

       WAS AN UNREASONABLE SEARCH.

       {¶ 21} In his second assignment, Porter argues that the initial traffic stop violated
                                                                                          -10-


his Fourth Amendment rights. Therefore, any evidence obtained as a result of the stop

should have been suppressed.

       {¶ 22} Initially, we note that Porter did not file a motion to suppress. Accordingly,

we find that Porter has waived any argument or objection to the validity of the traffic stop.

See State v. Blanton, 2d Dist. Montgomery No. 18923, 2002 WL 538869, *6 (the existence

of reasonable articulable suspicion or probable cause to believe that defendant was guilty

of criminal trespassing, and the corresponding admissibility or inadmissibility of the crack

cocaine, were no longer at issue, given that such issues must be litigated through a

pretrial suppression motion); State v. Greer, 39 Ohio St.3d 236, 240, 530 N.E.2d 382

(1988) (reasoning that the issue of probable cause to arrest the defendant was waived

because it was not included in a pretrial motion to suppress as a basis for suppressing

evidence); State v. F.O.E. Aerie 2295, 38 Ohio St.3d 53, 55, 526 N.E.2d 66 (1988)

(“Inasmuch as the evidence considered by the trial court was not the subject of a timely

motion to suppress, any error regarding its admissibility was waived.”).

       {¶ 23} Thus, for purposes of appellate review, Porter has waived all but plain error.

See State v. Saini, 2d Dist. Greene No. 2013 CA 36, 2014-Ohio-5582, ¶ 13. Plain error

may be noticed if a manifest injustice is demonstrated. Crim.R. 52(B); State v. Howard,

2d Dist. Montgomery No. 23795, 2011-Ohio-27, ¶ 31.            In order to find a manifest

miscarriage of justice, it must appear from the record as a whole that but for the error, the

outcome of the trial clearly would have been otherwise. State v. Long, 53 Ohio St.2d 91,

96, 372 N.E.2d 804 (1978).

       {¶ 24} The Fourth Amendment to the United States Constitution prohibits searches

and seizures that are unreasonable. A police officer who stops a vehicle and detains its
                                                                                          -11-


occupants “seizes” the occupants within the meaning of the Fourth Amendment.

Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The

seizure is reasonable under the Fourth Amendment if the officer has at least a reasonable

and articulable suspicion that “criminal activity may be afoot,” in other words, that a crime

is being committed. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

“[The] police officer must be able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that intrusion

[seizure].” Id. at 21. Also, “[w]hen determining whether an investigative traffic stop is

supported by a reasonable and articulable suspicion of criminal activity, the stop must be

viewed in light of the totality of the circumstances surrounding the stop.” State v. Bobo,

37 Ohio St.3d 177, 524 N.E.2d 489 (1988), at paragraph one of the syllabus.

       {¶ 25} In the instant case, Officer Burian’s decision to stop the truck emanated

solely from the results of a random license plate check. As previously stated, Officer

Burian testified that he performed a “random vehicle registration check” of the truck and

discovered that the vehicle’s registration had expired. It is well settled that “[r]andom,

suspicionless license-plate checks done on in-cruiser computers do not implicate the

Fourth Amendment and are permissible.” State v. Leveck, 196 Ohio App.3d 26, 2011-

Ohio-1135, 962 N.E.2d 316, ¶ 12 (2d Dist.). Accordingly, the traffic stop of the truck

based upon the results of Officer Burian’s random license plate check did not violate

Porter’s Fourth Amendment rights, and the trial court did not err, plainly or otherwise,

when it failed to suppress the evidence from the traffic stop.

       {¶ 26} Porter’s second assignment of error is overruled.

       {¶ 27} Porter’s third and final assignment of error is as follows:
                                                                                         -12-


       THE COURT ERRED WHEN IT DENIED APPELLANT’S ORAL RULE 29

       MOTION FOR ACQUITTAL, WHEN THE PROSECUTION FAILED

       BEYOND A REASONABLE DOUBT TO PROVE APPELLANT WAS

       GUILTY OF THE CRIMES HE WAS CHARGED [sic].

       {¶ 28} In his final assignment, Porter contends that the trial court erred when it

denied his Crim.R. 29 motion for acquittal. Specifically, Porter argues that the State

failed to adduce sufficient evidence that Porter had knowledge that the handgun was in

the vehicle at the time his arrest.

       {¶ 29} Crim.R. 29(A) states:

       The court on motion of a defendant or on its own motion, after the evidence

       on either side is closed, shall order the entry of a judgment of acquittal of

       one or more offenses charged in the indictment, information, or complaint,

       if the evidence is insufficient to sustain a conviction of such offense or

       offenses.

       {¶ 30} Rulings on Crim.R. 29 motions are reviewed under the same standards that

apply to review for sufficiency of the evidence. State v. Baker, 2d Dist. Greene No. 2009

CA 62, 2010-Ohio-2633, ¶ 16. When reviewing a trial court’s decision with respect to a

Crim.R. 29 motion, the proper 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. Cherry, 171 Ohio

App.3d 375, 2007-Ohio-2133, 870 N.E.2d 808, ¶ 9 (2d Dist.), quoting State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), at paragraph two of the syllabus.

       {¶ 31} Porter made his Crim.R. 29 motion for acquittal with respect to all three
                                                                                      -13-


counts in the indictment. Porter was convicted of having a weapon while under disability

pursuant to R.C. 2923.13(A)(2), which provides in pertinent part as follows:

       (A) Unless relieved from disability under operation of law or legal process,

       no person shall knowingly acquire, have, carry, or use any firearm or

       dangerous ordnance, if any of the following apply:

       ***

       (2) The person is under indictment for or has been convicted of any felony

       offense of violence or has been adjudicated a delinquent child for the

       commission of an offense that, if committed by an adult, would have been

       a felony offense of violence.

       {¶ 32} Porter was also convicted of improper handling of a firearm in a motor

vehicle, in violation of R.C. 2923.16(B), which states as follows:

       (B) No person shall knowingly transport or have a loaded firearm in a motor

       vehicle in such a manner that the firearm is accessible to the operator or

       any passenger without leaving the vehicle.

       {¶ 33} Lastly, Porter was convicted of carrying a concealed weapon (loaded/ready

at hand), in violation of R.C. 2923.12(A)(2), which states in pertinent part:

       (A) No person shall knowingly carry or have, concealed on the person's

       person or concealed ready at hand, any of the following:

       (2) A handgun other than a dangerous ordnance; ***

       {¶ 34} “A person acts knowingly, regardless of purpose, when the person is aware

that the person's conduct will probably cause a certain result or will probably be of a

certain nature. A person has knowledge of circumstances when the person is aware that
                                                                                          -14-


such circumstances probably exist.” R.C. 2901.22(B).

       {¶ 35} “In order to ‘have’ a firearm, one must either actually or constructively

possess it.” State v. Ridley, 10th Dist. Franklin No. 03AP-1204, 2005-Ohio-333, ¶ 18,

quoting State v. Hardy, 60 Ohio App.2d 325, 327, 397 N.E.2d 773 (8th Dist.1978).

“Constructive possession exists when an individual exercises dominion and control over

an object, even though that object may not be within his immediate physical possession.”

Id., quoting State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976).

       {¶ 36} We agree that the record in this case does not contain any direct evidence,

such as fingerprints, that Porter had actual possession of the handgun. However, direct

evidence is not required in order to find sufficient evidence to sustain a conviction. State

v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293 (1990). “Circumstantial evidence can

be used to support a finding of constructive possession.” State v. Najeway, 9th Dist.

Summit No. 21264, 2003-Ohio-3154, ¶ 10. “Circumstantial evidence and direct evidence

inherently possess the same probative value and therefore should be subjected to the

same standard of proof.” Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph

one of the syllabus.

       {¶ 37} Upon review, we conclude that the State adduced sufficient circumstantial

evidence that Porter had knowledge that the handgun was in the vehicle. Initially, we

note that the loaded handgun was found in the driver’s door of the truck where Porter

would have entered and exited every time he drove the vehicle. Evidence established

that the interior of the truck was a light color while the gun was black, making it easier to

see given the contrast. Furthermore, while Porter was not the owner of the truck, the

State presented evidence that he was the primary driver of the vehicle. Specifically, the
                                                                                          -15-


State established that Porter kept his own personal property in the truck, i.e. the bolt

cutters he admitted to using “for work.” Significantly, Porter was the only occupant of the

vehicle on the night of the traffic stop, and the handgun was loaded and operable when it

was found by Officer Wolf.

       {¶ 38} Accordingly, we find, when viewing the evidence in a light most favorable to

the State, that a rational trier of fact could have found that Porter, knowingly had a firearm

while under a disability. We further conclude, again when viewing the evidence in a light

most favorable to the State, that a rational trier of fact could have found that Porter

knowingly had a loaded firearm in a motor vehicle, and that the handgun was knowingly

concealed in a pocket in the driver’s door of the vehicle.

       {¶ 39} Porter’s third assignment of error is overruled.

       {¶ 40} All of Porter’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

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



WELBAUM, P.J. and TUCKER, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
David E. Stenson
Hon. Mary Katherine Huffman
