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State v. Gardner

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 17, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TIMOTHY GARDNER DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-604359-A

          ATTORNEY FOR APPELLANT Joseph V. Pagano

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Frank Romeo Zeleznikar Assistant Prosecuting Attorney

          BEFORE: E.A. Gallagher, P.J., Stewart, J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, PRESIDING JUDGE.

         {¶1} Defendant-appellant Timothy Gardner appeals his convictions for aggravated menacing, obstructing official business and having weapons while under disability. Gardner contends that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. He also contends that the trial court erred in ordering him to pay costs that it did not impose at the sentencing hearing. For the reasons that follow, we affirm Gardner's convictions for aggravated menacing and obstructing official business and vacate his conviction for having weapons while under disability.

         Factual and Procedural History

         {¶2} On March 15, 2016, a Cuyahoga County Grand Jury indicted Gardner on seven counts - one count of domestic violence, one count of aggravated menacing, one count of obstructing official business, one count of having weapons while under disability, one count of trafficking, one count of drug possession and one count of possessing criminal tools. The charges arose out of a January 26, 2016 incident in which Gardner allegedly hit his girlfriend, Tierra Mosey, in the face during an argument, then threatened to shoot her, her children and the police. Police officers apprehended Gardner in the backyard of his parents' house and, during a search incident to his arrest, found a bag of suspected crack cocaine in his hat. When police conducted a search of the area after they apprehended Gardner, they recovered a gun that had been hidden in the bottom of a fire pit in the backyard, a few feet from where Gardner was apprehended.

         {¶3} Gardner waived his right to a jury trial. At trial, the state presented testimony from five witnesses - Mosey, CMHA police officers Robert Lenz, Aaron Luther and Ashley Jaycox and Detective Darren Reeves with the Cleveland Police Department's domestic violence unit.

         {¶4} Mosey testified that on the evening of January 26, 2016, she and Gardner got into an argument when Gardner, Gardner's friend Devotie Cobb, III and Gardner's sister, Tiffany Gardner ("Tiffany"), were moving Gardner's belongings out of Mosey's apartment. Mosey claimed that Gardner was drunk and that Gardner "back-smacked" her, i.e., hit her with the back of his hand, in the side of the face, causing her to fall down a short flight of stairs. Mosey testified that after Gardner hit her, she was "mad" and that the side of her face was "a little numb for a minute" but that she "didn't have no bruises, " "did not hurt nothing" and was not treated for any injuries as a result of the incident.

         {¶5} Mosey ran out of the apartment, told Tiffany she was going to call the police and then went over to an aunt's house from where she called 911. After calling the police, Mosey returned to her apartment. Gardner left before the police arrived.

         {¶6} CMHA police officers Lenz, Luther and Jaycox responded to the call and began questioning Mosey about the incident. While Mosey was talking with the police, Gardner called her ten or more times on her cell phone. At the direction of one of the officers, Mosey ultimately answered the phone and activated the speaker function so that the officers could hear their conversation. Mosey testified that Gardner said, "B****, I'm about to come shoot you and your kids." When Mosey informed Gardner that she was with the police, Gardner responded that he "didn't care" and that he "got one for them, too."

         {¶7} Officers Lenz, Luther and Jaycox overheard Mosey and Gardner's conversation. Officer Lenz testified that he heard Gardner state "several times" that "he couldn't believe she called the cops on him, " that he would shoot her and her two sons and that if any law enforcement officials "came out to him, " he was going to "shoot it out with them, " too. Officers Luther and Jaycox offered similar testimony, i.e., that Gardner was upset that Mosey had called the police, that he threatened to kill Mosey and her children and that he stated that if the police came to his location, he would shoot them, too.

         {¶8} After hearing Gardner's threats, Officer Luther identified himself to Gardner and asked Gardner his location. After several requests for the information, Gardner told the officer that he was at his parents' house on Project Avenue in Cleveland and gave the officer the address.

         {¶9} Officers Luther and Lenz proceeded to Gardner's parents' house while Officer Jaycox stayed behind with Mosey and continued to interview her. Officer Jaycox testified that Mosey told her that she had previously seen Gardner with what Mosey described as a silver and black .38 caliber firearm and that "about a month prior, whenever he had carried the firearm, " Gardner "would store" it in his parents' backyard "in the vicinity between a parked car and a fire pit." Officer Jaycox testified that she relayed this information to the other officers who were attempting to apprehend Gardner; however, Officer Luther denied that he received the information.

         {¶10} When Officers Luther and Lenz arrived at Gardner's parents' house, Gardner was in the front yard in an "aggressive stance." Gardner ignored the officers' commands to get on the ground and, instead, told the officers to "[c]ome on, " then ran into the house through the front door out the side door and into the backyard. Officer Luther followed Gardner into the house while Officer Lenz went around the side of the house towards the backyard.

         {¶11} Officer Lenz testified that when he made contact with Gardner in the backyard, he told Gardner "several more times to get on the ground" before Gardner finally complied. He testified that, at this point, additional officers arrived on scene who assisted in handcuffing Gardner and placing him in the zone car. During a search incident to his arrest, officers discovered a bag of suspected crack cocaine hidden in the brim of a winter hat Gardner was wearing. Police also recovered a .22 caliber revolver in the bottom of a fire pit in the backyard, a few feet from where Gardner was apprehended. Detective Reeves testified that the gun was analyzed for fingerprints but that "[n]o latent prints of value were detected." The suspected drugs were tested and determined to be crack cocaine.

         {¶12} After the state presented its case, Gardner moved for a dismissal of all counts under Crim.R. 29. The state conceded that it had not presented sufficient evidence on the trafficking count. The trial court granted Gardner's motion for acquittal on the trafficking count and denied the motion as to the remaining counts.

         {¶13} In his defense, Gardner presented testimony from his sister Tiffany and his friend Cobb who were helping Gardner move out of Mosey's apartment at the time of the alleged incident. Tiffany claimed that Mosey was begging Gardner not to leave and denied that Gardner struck Mosey. Tiffany testified that she was peering through the screen door the entire time Gardner was in the apartment retrieving his belongings and that "ain't nobody touch her." Tiffany claimed that this was not the first time Mosey had lied, but rather, that "she do this all the time." Tiffany described a prior incident in which Mosey had posted a photograph on social media claiming that Gardner had given her a black eye, then, five minutes later, posted another photograph without it, saying that she "was just playing" and that she had used makeup to create the "black eye."

         {¶14} Cobb likewise denied that Gardner hit Mosey. He testified that he was sitting at the bottom of the stairs waiting for Gardner to come back with more of his belongings when Mosey stopped Gardner on the stairs asking why he was leaving her. Cobb testified that Gardner told her that their relationship was over and that the couple argued for approximately 20 minutes before Gardner eventually went up the stairs "to go past her." Cobb testified that Gardner "brushed up on [Mosey]" as he went up the stairs then came back down and handed Cobb a bag to take to the car. Cobb testified that before he left the porch, Mosey ran past him, telling Tiffany that Gardner had hit her. Cobb testified that he asked Mosey when Gardner had hit her. Mosey did not answer his question but said that they "better hurry up and leave" because she was calling the police. At the close of all the evidence, Gardner renewed his Crim.R. 29 motion. The trial court, once again, denied the motion.

         {¶15} The trial court found Gardner guilty of aggravated menacing in violation of R.C. 2903.21(A), obstructing official business in violation of R.C. 2921.31(A), having weapons while under disability in violation of R.C. 2923.13(A)(3) and drug possession in violation of R.C. 2925.11(A). The trial court found Gardner not guilty on the remaining counts. Gardner was sentenced to two years of community control sanctions on each count. Although the trial court did not mention costs at the sentencing hearing, on June 1, 2016, the trial court issued a sentencing journal imposing costs.

         {¶16} Gardner appealed, raising the following three assignments of error for review:

Assignment of Error I:
Appellant's convictions were not supported by sufficient evidence and the trial court erred by denying his motion for acquittal.
Assignment of Error II:
The convictions were against the manifest weight of the evidence.
Assignment of Error III:
The trial court erred by imposing costs where it found appellant indigent, did not impose costs in open court and failed to consider his inability to pay.

         Law ...


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