State v. Vaughn

• Docket Number: 20 MA 0106
• Decision Date: 29 September 2022
• Citation: 197 N.E.3d 644
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Terrell VAUGHN, Defendant-Appellant.
• Court: Ohio Court of Appeals

197 N.E.3d 644

STATE of Ohio, Plaintiff-Appellee,

v.Terrell VAUGHN, Defendant-Appellant.

No. 20 MA 0106

Court of Appeals of Ohio, Seventh District, Mahoning County.

September 29, 2022

Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Edward A. Czopur, Assistant Prosecuting Attorney, Criminal Division, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee.

Atty. Rhonda G. Santha, 6401 State Route 534, West Farmington, Ohio 44491, for Defendant-Appellant.

BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D'Apolito, Judges.

OPINION AND JUDGMENT ENTRY

WAITE, J.

{¶1} Appellant Terrell Vaughn appeals a September 10, 2020 judgment entry of the Mahoning County Court of Common Pleas finding him guilty of two counts of having a weapon while under disability. Appellant challenges the evidence supporting the trial court's finding that he constructively possessed two firearms under both a sufficiency of the evidence and manifest weight of the evidence standard. For the reasons that follow, Appellant's arguments are without merit and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} This matter involves a drug and firearm investigation. While certain facts pertaining to the drug investigation are provided for context and completeness, this matter is based on the weapons investigation. The Youngstown Police Department Vice Unit obtained a search warrant for an address located in Youngstown, Ohio. The officers obtained the warrant after several controlled buys were conducted on the premises. It does not appear that the officers discovered who owned or resided at the address during their investigation.

{¶3} On January 16, 2020, a search warrant SWAT team that included Officer Francis Bigowsky, Officer Joseph Burnich, Officer Christopher Staley, and Officer Jim Welch arrived at the address during the evening hours. The officers knocked at the front door and announced their presence. Appellant's codefendant, Richard Cummings, answered the door and the officers entered the house. The officers began to "clear" each room of the residence. Four people were inside the house at the time the police arrived. While Cummings was the first person the team encountered, Appellant was the second.

{¶4} Officer Burnich testified that he located Appellant while attempting to clear a hallway. The hallway does not encompass a large area, as the house itself is quite small. On the left side of the hallway is a small closet-like opening that did not have a door. Officer Burnich saw Appellant as he "stepped out of that closet area." (Trial Tr., p. 51.) He stated that he made contact with Appellant "[a]t the closet entry." (Trial Tr., p. 53.)

{¶5} It appears that Officer Staley was behind Officer Burnich. Officer Staley heard Officer Burnich order Appellant to the ground and observed Appellant as "[h]e was coming out of that closet area." (Trial Tr., p. 75.) After defense counsel reminded Officer Staley that his testimony at the preliminary hearing indicated that he had not observed Appellant "inside" the closet, he amended his testimony by saying that he saw Appellant "[d]irectly next to the closet." (Trial Tr., p. 86.)

{¶6} Appellant's proximity to this closet is important, here. The closet was described as similar to a coat closet, but deeper. While the inside of the closet was cluttered, the officers observed three steps inside. The officers used these steps to access an unfinished attic. The access point to the attic is an uncovered cutout in the ceiling. Photographs in evidence demonstrate that the opening is large enough to comfortably allow a large person to enter into the attic.

{¶7} Three officers entered the attic area after the house was cleared. It appears that Officer Bigowsky entered first. Officer Bigowsky described his height as approximately six foot four or five inches. He testified he could reach his hand into the attic by standing on the bottom step. Officer Staley estimated the access point to be about eight feet from the floor. He stated that he had to use all of the steps and stand on his toes to hoist himself up into the attic area. (Trial Tr., p. 27.) No evidence was directly presented as to Appellant's height. However, a photograph of Appellant was admitted into evidence and the top of his head can be seen to reach within six inches or so from the top of a door located inside the house. (State's Exh. 9.)

{¶8} The perimeter of the attic's access point is surrounded by wooden studs and is small, but large enough to have allowed one of the officers who described his weight as 300 pounds to enter into the attic. The attic floor is unfinished and wooden studs are visible with insulation lying between the studs. Resting along one of the wooden studs that surround the access point is what is described as a "Hi-Point Model JCP .40 caliber handgun." (Trial Tr., p. 29.) As shown in one of the photographs admitted into evidence, the handle is sticking up into the air and the top of the gun is resting on the floorboard. (State's Exh. 3.) Several inches away from the handgun is what is described as a "Hi-Point 9mm Model 995 rifle." (Trial Tr., p. 29.) No measurements are provided for the rifle but it appears to be at least two to three feet in length. The rifle is at least twice the width of the access point. Unlike the handgun, the rifle appears to have been strategically laid on its side across multiple wooden studs.

{¶9} At the time that the officers discovered these firearms Appellant was under a weapons disability due to a prior conviction. Consequently, on February 20, 2020, Appellant was indicted on two counts of having a weapon while under a disability, felonies of the third degree in violation of R.C. 2923.13(B). The two counts correlated with the two firearms found in the attic. Appellant waived jury trial and the matter proceeded to a bench trial.

{¶10} The state admitted recordings of two jailhouse phone calls into evidence. (State's Exh. 17.) Both calls were made to a female whose name is inaudible. It is clear that both calls were made to the same woman. In the first, Appellant expressed concern that if he did not "beat this charge" he may face federal charges having a possible prison term of up to forty months. He told the woman that he and "Rich" (his codefendant, Cummings) found the guns in the basement, and that he thought Cummings had moved them from the basement to the garage. In the second call, Appellant asked her to contact a man whose name is also inaudible. He wanted her to ask the man to testify that he was present with Appellant and Cummings when they found the firearms in the basement.

{¶11} On June 17, 2020, the court filed a "Judge's Decision" finding Appellant guilty on both counts. On September 10, 2020, the court sentenced Appellant to one year of incarceration on each count to run concurrently. The court noted that Appellant was, in fact, facing federal charges from the incident and ordered his sentence to run concurrent to any sentence received in the federal case. Appellant was credited with 247 days of time served. The court terminated Appellant's postrelease control stemming from an earlier conviction on Appellant's motion requesting such relief, based on the prior court's failure to provide the appropriate notifications in the sentencing entry. It is from this entry that Appellant timely appeals.

ASSIGNMENT OF ERROR

The Trial Court erred in its finding that Appellee, State of Ohio, "produced proof beyond a reasonable doubt that the [Appellant was] Guilty of Counts One and Two of the indictment, Having Weapons While Under Disability, in violation of Ohio Revised Code Section 2923.13(A)(2) [and] 2923.13(6)." Judge's Decision, pp. 5-6.

{¶12} Appellant challenges his convictions under both a sufficiency and manifest weight standard. Specifically, Appellant argues that the evidence failed to show he constructively possessed either of the firearms at issue. Likewise, he contends that the record is devoid of evidence that he was conscious of even the presence of a firearm.

{¶13} The state responds that Officers Burnich and Staley observed Appellant exit the closet area and that there was no other person near. The state contends that the firearms were accessible without the necessity to physically enter the attic, and could be retrieved by a person standing inside the closet and reaching through the open access point. The state notes that the firearms had apparently not been in the attic for a long period of time, as there was no dust on them. The state also raises Appellant's jailhouse phone calls where he admitted knowledge of the firearms.

{¶14} As previously noted, Appellant advances his arguments under both a sufficiency of the evidence and manifest weight of the evidence argument. "Sufficiency of the evidence is a legal question dealing with adequacy." State v. Pepin-McCaffrey , 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476, ¶ 49 (7th Dist.), citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). "Sufficiency is a term of art meaning that legal standard which is applied to determine whether a case may go to the jury or whether evidence is legally sufficient to support the jury verdict as a matter of law." State v. Draper , 7th Dist. Jefferson No. 07 JE 45, 2009-Ohio-1023, 2009 WL 582570, ¶ 14, citing State v. Robinson , 162 Ohio St. 486, 124 N.E.2d 148 (1955). When reviewing a conviction for sufficiency of the evidence, a reviewing court does not determine "whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." State v. Rucci , 7th Dist. Mahoning No. 13 MA 34, 2015-Ohio-1882, 2015 WL 2343421, ¶ 14, citing State v. Merritt , 7th Dist. Jefferson No. 09-JE-26, 2011-Ohio-1468, 2011 WL 1118484, ¶ 34.

{¶15} Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the...