Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 2013 CR 828
Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County
Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting
Defendant-Appellant: Atty. Frank Cassese Betras, Kopp &
JUDGES: Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Mary
Defendant-Appellant Frankie Hudson Jr. appeals the judgment
of the Mahoning County Common Pleas Court finding him guilty
of having a weapon while under disability and imposing a
maximum sentence of 36 months in prison. Appellant contends
there was insufficient evidence to support the conviction and
the trial court's decision was contrary to the manifest
weight of the evidence. In submitting supplemental authority,
he contends a juvenile adjudication cannot be used as an
element of the offense. Regarding his sentence, Appellant
argues the court failed to make findings under R.C. 2929.12
and failed to provide support for a maximum sentence. As
these arguments are without merit, Appellant's conviction
and sentence are affirmed. However, the matter is remanded to
the trial court with instructions to issue a nunc pro tunc
entry as the consecutive sentence findings made at the
sentencing hearing were not set forth in the sentencing entry
and there is a clerical error in reciting the number of
months imposed as Appellant's sentence.
OF THE CASE
On September 16, 2011, seventeen-year-old Joshua Davis was
shot four times which caused his death. Appellant was
indicted for: aggravated murder in violation of R.C.
2903.01(B) for purposely causing the death in connection with
an aggravated robbery; aggravated robbery in violation of
R.C. 2911.01(A)(1), which involves a deadly weapon;
accompanying firearm specifications; and having a weapon
while under disability in violation of R.C. 2923.13(A)(2)
(due to a prior juvenile adjudication for an offense that
would be a felony offense of violence if committed by an
adult). Prior to the jury trial, Appellant waived the right
to trial by jury on the charge of having a weapon while under
disability and agreed to have this count tried to the bench.
The victim's mother testified she provided her son with
$1, 000 in the hours prior to his death so he could purchase
a vehicle. (Tr. 228). She heard the victim take a phone call
and then exit the house; she soon heard gunshots and found
her son lying on the front porch. (Tr. 229-232). The victim
had been shot four times: one shot was fired into each upper
thigh from very close range; one shot was fired into the
victim's face; and one shot was fired into the top of his
shoulder from a downward angle. (Tr. 596-607).
A person on a bicycle saw three to four people run from the
porch after the shooting. (Tr. 250, 254). Another witness saw
three people alight from the porch after the shooting. (Tr.
261). Police recovered two spent shell casings from the front
porch: a 9mm casing and a .40 caliber casing, which could not
have been fired from the same gun. (Tr. 287, 478). Bags of
marijuana and a scale were recovered from the scene. (Tr.
272). The money was not recovered. (Tr. 232). The first
responding officer noticed the victim's hands were in his
coat pockets. (Tr. 273).
The state presented the testimony of Appellant's
half-brother, who testified that he, Appellant, Lamar Reese,
two other acquaintances planned to steal marijuana from the
victim. The brother was present the day before when another
friend had a disagreement with the victim over a marijuana
sale that "fell through." (Tr. 339-340). The
brother said he called the victim to smooth things over and
later called to arrange a marijuana purchase. He also drove
the group to the victim's house. (Tr. 344). He testified
he and Appellant were going to take possession of the
marijuana and then merely leave without paying; he said guns
were not supposed to be involved. (Tr. 346-347). Yet, he said
he carried his mother's 9mm, Appellant carried a .40
caliber Glock, and Lamar Reese carried a 9mm rifle. (Tr.
345-346). The brother reported it was his .40 caliber firearm
Appellant carried that night. (Tr. 380-381).
According to the brother, the victim led him and Appellant
through his house to the garage in order to weigh the
marijuana. The brother testified that when they exited the
house onto the front porch, Lamar Reese was standing by the
porch with his gun cocked. (Tr. 350-351). The brother
testified the victim moved his hands in his pockets at which
point Appellant pointed his gun at the victim as well. (Tr.
351, 353). The brother said he backed away and ran as he
heard the first gunshot. (Tr. 355). He hid his gun in a bush
and recovered it later. (Tr. 357, 360). The brother stated
Appellant told him he hid his gun on top of a building. (Tr.
The brother initially denied any involvement but decided to
provide his statement after Appellant incriminated him while
denying involvement. More than a year after the incident,
Appellant gave a statement to police that his brother and
three others plotted to rob the victim while they were all at
a party. (Tr. 518). When the four left, Appellant said he
went home and did not participate. (Tr. 520). He said two
guns were passed around: a .40 caliber and "a 9 by 19
9mm, kind of sawed off looking machine gun type of 9mm."
(Tr. 519). Appellant reported to police that he handled the
.40 caliber firearm at the party. (Tr. 519, 529). Appellant
also advised that his brother told him about the shooting the
next day. (Tr. 521). Upon learning of Appellant's new
statement, the brother agreed to testify against Appellant
and Lamar Reese. (Tr. 367-369).
The jury found Appellant not guilty of aggravated murder, the
lesser included offense of murder, and aggravated robbery.
The court then addressed the charge of having a weapon while
under disability. The defense stipulated to the state's
presentation of a certified copy of Appellant's
adjudication as a juvenile for felonious assault. (Tr.
746-747). The trial court found Appellant guilty of having a
weapon while under disability, which is a third-degree
felony. See R.C. 2923.13(A)(2), (B); (J.E. 6/26/16).
Appellant was sentenced to 36 months in prison, which is the
maximum sentence for this type of third-degree felony.
See R.C. 2929.14(A)(3)(b); (J.E. 7/15/16).
Appellant sets forth two assignments of error on appeal. The
first assignment of error contests the maximum sentence and
will be discussed last. Appellant's second assignment of
error contains arguments on both the sufficiency and the
weight of the evidence. As these concepts are distinct, they
will be addressed separately. See State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997)
("The legal concepts of sufficiency of the evidence and
weight of the evidence are both quantitatively and
OF THE EVIDENCE
On the topic of sufficiency, Appellant's second
assignment of error provides in pertinent part:
presented is insufficient * * * to support a conviction of
Having Weapons While Under Disability * * *."
Whether the evidence is legally sufficient to sustain a
conviction is a question of law. Thompkins, 78 Ohio
St.3d at 386. It is a test of adequacy Id. An
evaluation of a witness's credibility is not involved in
sufficiency review State v. Yarbrough, 95 Ohio St.3d
227, 240, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79 Rather,
the question is whether the evidence, if believed, is
sufficient See Id. at ¶ 82; State v.
Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001) In
other words, sufficiency involves the state's burden of
production rather than its burden of persuasion See
Thompkins, 78 Ohio St.3d at 390 (Cook, J, concurring).
In viewing a sufficiency of the evidence argument, the
evidence and all rational inferences are evaluated in the
light most favorable to the prosecution. See State v.
Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A
conviction cannot be reversed on grounds of sufficiency
unless the reviewing court determines that no rational juror
could have found the elements of the offense proven beyond a
reasonable doubt. Id.
The statute defining the offense of having a weapon while
under disability provides in part that a person, who has been
adjudicated a delinquent child for an offense that would be a
felony offense of violence if committed by an adult, shall
not "knowingly acquire, have, carry, or use any firearm
* * *." R.C. 2923.13(A)(2). The parties stipulated to
the admission of a certified copy of the judgment entry
establishing Appellant's prior adjudication, and
Appellant does not take issue with the element involving a
qualifying prior juvenile adjudication. Rather, he contends
he did not possess a firearm.
Appellant's brother said he owned the .40 caliber firearm
Appellant carried to the victim's house. Ownership is not
required to prove a defendant did "acquire, have, carry,
or use any firearm." See R.C. 2923.13(A)(2);
State v. Tucker, 9th Dist. No. 13CA010339,
2016-Ohio-1353, ¶ 21. Actual possession can be
established by ownership or physical control. State v.
Riley, 7th Dist. No. 13 MA 180, 2015-Ohio-94, ¶ 25;
State v. Haslam, 7th Dist. No. 08 MO 3,
2009-Ohio-1663, ¶ 41. Although the word possess is not
used in the statute, to "have" a firearm the
defendant must have had actual or constructive possession.