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State v. Boyde

Court of Appeals of Ohio, Tenth District

September 3, 2013

State of Ohio, Plaintiff-Appellee,
v.
Duane D. Boyde, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas. No. 11CR-09-4707.

Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for appellee.

Brian J. Rigg, for appellant.

DECISION

SADLER, J.

(¶ 1} Defendant-appellant, Duane D. Boyde, appeals from a judgment of the Franklin County Court of Common Pleas convicting him of one count of having a weapon while under disability ("WUD") and one count of carrying a concealed weapon ("CCW"). For the following reasons, we affirm the judgment of the trial court.

I. BACKGROUND

(¶ 2} Appellant was indicted on September 1, 2011, on one count of CCW, a fourth-degree felony, in violation of R.C. 2923.12, and one count of WUD, a third-degree felony, in violation of R.C. 2923.13. A jury trial commenced on September 5, 2012, and, as adduced at trial, the charges arose from the following events.

(¶ 3} On August 12, 2011, at approximately 7:46 p.m., Columbus Police Officers Michael Slivanya and Ryan Steele were patrolling in a marked police cruiser. As the officers turned onto Richmond Avenue, they observed appellant and Eric Jordan walking in the middle of the street. According to the officers, Columbus City Code prohibits said conduct when a sidewalk is available. The officers initiated contact with the two individuals, and, as Officer Slivanya exited the cruiser, he noticed a bulge in appellant's right waistband area and alerted Officer Steele to it. Officer Steele testified appellant was "blading, " which Officer Steele described is a term referring to a person standing to his or her side in order to partially conceal the opposite part of the body. According to Officer Steele, this behavior puts officers on alert that the individual may be hiding a weapon or contraband.

(¶ 4} Officer Slivanya approached Jordan and Officer Steele approached appellant. According to Officer Steele, as he approached, appellant appeared to be nervous. When asked if he had anything, appellant responded "yeah, " prompting Officer Steele to ask if he had a gun. (Tr. 149.) According to Officer Steele, appellant indicated that he had a gun on his person. At that time, appellant was handcuffed and a loaded firearm wrapped in a black plastic bag was recovered from appellant's right pocket. Also recovered from appellant's pocket was a small amount of marijuana. Officer Steele testified another police cruiser arrived at the scene after appellant was arrested, and those officers did not assist in any way. According to the testimony, the scene was cleared at 7:54 p.m.

(¶ 5} Jordan testified that he and appellant have been friends since they were children. According to Jordan, on August 12, 2011, he and appellant were walking and discussing doing something for the kids in the neighborhood. As they crossed the street, Jordan testified two police cruisers arrived. According to Jordan, several officers jumped out of the police cruisers with guns drawn asking, "Where's the gun at? Where's the gun at?" (Tr. 218.) While being detained in a police cruiser, Jordan testified he was able to observe what was happening with appellant. Jordan testified that, while he saw the officers search appellant, he only saw them remove some papers and a wallet from appellant's pockets. Jordan denied that appellant had any weapons.

(¶ 6} Jamie Peters testified that, as she was walking to the store, she observed two police cruisers stop to confront appellant and Jordan. According to Peters, three police officers drew their weapons and demanded, "Where is the gun?" (Tr. 247.) Peters stated she saw the officers pull items out of appellant's pockets, and she was "pretty sure it was a black wallet, some keys and some papers." (Tr. 252.) On cross-examination, Peters testified that she became friends with appellant after this incident and that he asked her to be a witness. Though admitting she refused to discuss what she saw with the prosecutor, she testified she and appellant have discussed her testimony.

(¶ 7} After Peters testified, appellant's counsel stated his "client wants to testify." (Tr. 262.) A discussion was held on the record, and the trial court inquired, "Do you wish to talk to your attorney further about your decision to testify?" (Tr. 264.) Appellant responded in the affirmative. Thereafter, appellant indicated on the record that he did not wish to testify at trial.

(¶ 8} The parties stipulated that the firearm recovered was operable and that the entry reflecting appellant's previously entered guilty plea to robbery, a third-degree felony, in violation of R.C. 2911.02, was a true and accurate certified copy of the same.

(¶ 9} The jury rendered verdicts of guilty on both of the indicted offenses. A sentencing hearing was held, and appellant was sentenced to concurrent 17-month and 30-month terms of incarceration. Additionally, appellant was awarded 49 days of jail-time credit.

II. ASSIGNMENTS OF ERROR

(¶ 10} This appeal followed, and appellant brings the following three assignments of error ...


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