[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

v. JAMES M. PORTER, JR. Defendant-Appellant : : : : : : : : : : Appellate Case No. 28288

Trial Court Case No. 2018-CR-3953 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 1st day of November, 2019.

. . . . . . . . . . . MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 009590 0, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee DAVID E. STENSON, Atty. Reg. No. 0042671, 131 North Ludlow Stre et, Suite 316, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . DONOVAN, J.-2- {¶ 1} Defendant-appellant James M. Porter, Jr., appeals his convictio n for the following offenses: Count I, having weapons while under disabil ity (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 weapo n (loaded/ready at hand), in violation of R.C. 2923.12(A)(2), a felony of the fourth degr ee. 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 occ urred shortly after 10:00 p.m. on October 10, 2018, when Kettering Police Off icer 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 2 2, 2018. At that point, Officer Burian activated his overhead lights and siren and init iated 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. Offic er 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 expi red identification card

from California. Officer Burian testified that Porter stated t hat he did not have insurance and that the vehicle was owned by his father. Officer Burian t hen went back to his cruiser and entered Porter’s name into the LEADS system in order to che ck the status of his driving privileges. Using LEADS, Officer Burian was able to de termine 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 probat ion 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 ha ndcuffs and put him in the back of the police cruiser. {¶ 4} After Porter had been removed from the vehicle, Officer Wolf lo oked into the interior of the vehicle and observed the butt of a handgun prot ruding from a pocket on the driver’s door of the vehicle. Upon further inspection, the han dgun was found to be loaded. After the handgun was secured, Officer Wolf searched t he 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 cutte rs and binoculars under the passenger seat inside the vehicle. After Porter had been infor med of his Miranda rights, he admitted that the brown jar was his and that he used the bol t cutters “for work.” Tr. 43. {¶ 5} On November 8, 2018, Porter was indicted for the following offe nses: Count I, having weapons while under disability (prior offense of viol ence); Count II, improper handling of a firearm in a motor vehicle; and Count III, carryi ng a concealed weapon (loaded/ready at hand). At his arraignment on November 13, 201 8, 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 e xclusion of the black jacket, black backpack, ski mask, wig, black gloves, brown unlabeled jar containing an acidic liquid, and bolt cutters. Porter also req uested that the trial court preclude any mention at trial of his prior conviction for felon ious assault. The record-4- establishes that, prior to trial, the parties agreed to stipula te 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 Jan uary 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 weapon s while under disability. After merging Counts II and III, the trial court sentenced Port er 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 e rred when it permitted the State to introduce into evidence Exhibits 1-21, w hich were photographs of the black jacket, black backpack, ski mask, wig, black gloves, brown unlabeled jar containing an acidic liquid, and bolt cutters. Specifically, P orter argues that, by allowing the items into evidence, the jury could “conclude [that] the it ems 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:

1 We 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, wro ngs, or acts is not admissible to prove the character of a person in order t o show action in conformity therewith. It may, however, be admissible for oth er 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 reasona ble 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 inte nds to

introduce at trial. {¶ 11} Evid.R. 403(A) provides: Exclusion mandatory. Although relevant, evidence is not admissi ble if its probative value is substantially outweighed by the danger of un fair prejudice, of confusion of the issues, or of misleading the jur y. {¶ 12} We have followed established precedent holding that Evid.R. 404 (B) must be strictly construed against the admissibility of other-bad-ac ts 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 lon g recognized that evidence of other crimes, wrongs or bad acts carries the potent ial 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 i s 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. Ev id.R. 401.-6- The next step is to consider whether evidence of the other crim es, wrongs, or acts is presented to prove the character of the accused in o rder to show activity in conformity therewith or whether the other acts evid ence is presented for a legitimate purpose, such as those stated in Evi d.R. 404(B). The third step is to consider whether the probative value of th e other acts evidence is substantially outweighed by the danger of unfair pr ejudice. 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 cre ated material prejudice.”

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

v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 66. “P rejudice 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 est ablished that Porter was aware of the presence of the handgun in the pocket o f the driver’s door of the vehicle in which he was stopped. In addition to the handgun, O fficer Wolf discovered a black backpack containing a black jacket, a ski mask, a wig, bl ack 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 cu tters and a pair of binoculars under the passenger seat. Porter admitted to the po lice that the brown jar-7- taken from the backpack was his and that he used the bolt cutte rs for work. Relying on Evid.R. 404(B), the State argued to the trial court that Exhibi ts 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 owners hip of the bolt cutters and the jar, a reasonable factfinder could have inferred that P orter 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 “probativ e 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 t o 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 esta blished that Porter used the vehicle regularly and thus had knowledge of what was in the veh icle, including the handgun. Unfavorable evidence is not equivalent to unfairly pr ejudicial evidence. State

v. Bowman , 144 Ohio App.3d 179, 185, 759 N.E.2d 856 (12th Dist.2001). A ccordingly, 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 cle arly probative of whether Porter used the vehicle regularly and therefore had knowledge t hat 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 jac ket, 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 ite ms to prove the character of the defendant in order to show that h e acted in conformity or in accordance with that character. The evidence may be considered by you only for the purpose of deciding whether it p roves the absence of mistake, the defendant’s opportunity to commit the o ffense or offenses charged in the indictment, defendant’s knowledge of th e circumstances surrounding the offense or offenses charged in th e indictment or the identity of the person who committed the offe nse or offenses charged in the indictment. The evidence cannot be con sidered 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 Por ter 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 p rejudiced-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 Exhi bit 5 depicts a cell phone sitting on the truck’s seat next to where he would h ave been sitting. Additionally, State’s Exhibit 20 depicts a cell phone placed ne xt to a handgun. Porter argues that the jury’s question regarding the cell phone establ ishes 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 photogra phs of the cell phone(s). We note that only one actual cell phone was introduced into evi dence along with the two photos. {¶ 19} Upon review, we find that the jury’s question regarding the pos sible presence of an additional cell phone in the vehicle does not re late in any way to any inferences regarding Porter’s character. While the evidence pr esented 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 c ourt did not err when it admitted the photographs of the additional items, and Porter was not pre judiced 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 traffi c 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 suppres s. 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 existenc e of reasonable articulable suspicion or probable cause to believ e 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 b e 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 th e 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 no t the subject of a timely motion to suppress, any error re garding its admissibility was w aived.”). {¶ 23} Thus, for purposes of appellate review, Porter has waived all b ut 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 who le 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 prohibit s 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 Four th 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 art iculable 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 tra ffic 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 surroundin g the stop.” State v. Bobo , 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), at paragraph one of t he syllabus. {¶ 25} In the instant case, Officer Burian’s decision to stop the truc k emanated solely from the results of a random license plate check. As pr eviously stated, Officer Burian testified that he performed a “random vehicle registrati on check” of the truck and discovered that the vehicle’s registration had expired. It is well settled that “[r]andom, suspicionless license-plate che cks done on in-crui ser 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 t raffic 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 e rr, 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 e rred when it denied his Crim.R. 29 motion for acquittal. Specifically, Port er 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 o f 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 stand ards 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 dec ision with respect to a Crim.R. 29 motion, the proper inquiry is whether, “ ‘after view ing the evidence in a light most favorable to the prosecution, any rational trier of fact c ould 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.), quo ting 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 wea pon while under disability pursuant to R.C. 2923.13(A)(2), which provides in pertinent par t as follows: (A) Unless relieved from disability under operation of law or l egal process, no person shall knowingly acquire, have, carry, or use any fire arm 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 follo ws: (B) No person shall knowingly transport or have a loaded firear m 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 (lo aded/ready at hand), in violation of R.C. 2923.12(A)(2), which states in p ertinent part: (A) No person shall knowingly carry or have, concealed on the p erson'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 perso n 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 t he 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 cons tructively 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 do minion and control over an object, even though that object may not be within his immedi ate 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 dire ct evidence, such as fingerprints, that Porter had actual possession of the handgun. However, direct evidence is not required in order to find sufficient evidence t o sustain a conviction. State

v. Lott , 51 Ohio St.3d 160, 167, 555 N.E.2d 293 (1990). “Circumstanti al evidence can be used to support a finding of constructive possession.” State v. Najeway , 9th Dist. Summit No. 21264, 2003-Ohio-3154, ¶ 10. “Circumstantial eviden ce and direct evidence inherently possess the same probative value and therefore shoul d 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 circ umstantial 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 l oaded 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 fur ther conclude, again when view ing the evidence in a light most favorable to the State, that a rational trier of fact coul d 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.

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