[Cite as State v. Giguere, 2023-Ohio-4649.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112470

v. :

CHRISTIAN GIGUERE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: December 21, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-22-672560-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, Natalie M. Laszcz, and Alan Dowling, Assistant 

Prosecuting Attorneys, for appellee. 

John F. Corrigan, for appellant. 

MARY J. BOYLE, J.:

Defendant-appellant, Christian Giguere (“Giguere”), appeals his 

firearm specification in his drug possession conviction, raising the following 

assignments of error for review:
Assignment of Error I: [Giguere]’s firearm specification penalty 

enhancement in Count 3 [(drug possession)]is not supported by legally 

sufficient evidence as required by state and federal due process.

Assignment of Error II: [Giguere] was prejudiced by ineffective 

assistance of trial counsel. 

For the reasons set forth below, we affirm Giguere’s conviction. 

I. Facts and Procedural History

In January 2023, a jury found Giguere guilty of having a weapon 

while under disability (“HWWUD”) as charged in Counts 1 and 2 of the indictment; 

not guilty of the forfeiture specification as charged in Counts 1, 2, 3, 4, and 7; guilty 

of drug possession with firearm specifications as charged in Counts 3 and 4; not 

guilty of drug possession with firearm and forfeiture specifications as charged in 

Counts 5 and 6; and guilty of possessing criminal tools with the intended use in the 

commission of a felony under Count 7. We limit the facts set forth below to those 

relevant to the assigned errors relating to the one-year firearm specification Giguere

challenges. 

The state called five witnesses. Cleveland Police Vice Unit Detective 

Lawrence Smith (“Detective Smith”) testified that he obtained and executed a search 

warrant at 3811 Muriel Avenue in Cleveland (“3811 Muriel”) in April 2022. 

According to Detective Smith, SWAT made the initial entry and secured the 

residence and its occupants. Detective Smith described 3811 Muriel as “a house that 

drug activity is coming and going from.” (Tr. 281.) Detective Smith testified that six 
to seven people were inside, including their target, Fonda Holz (“Holz”), as well as

Giguere, and Kelvin Theodus (“Theodus”).

Theodus testified that he lived at 3811 Muriel for about six or seven 

years and took care of the property. Theodus stated that he lived at 3811 Muriel with 

three other people, including Holz, to whom he rented an upstairs room. Theodus 

testified that it took him some time to figure out that Holz was selling drugs from 

3811 Muriel, but once he did, he told her to stop. Theodus testified that Holz told

him that she had a gun sometime prior to the execution of search warrant in April 

2022. Theodus further testified that Holz was not supposed to have visitors, but he 

observed Giguere at 3811 Muriel and believed Giguere and Holz were dating. 

Theodus stated that he told Giguere “not to come around there” but Giguere would 

sneak in and stay with Holz by climbing through the bedroom window. (Tr. 373.)

Theodus testified that he was in the kitchen when police officers brought Giguere 

down from the upstairs in April 2022: “[T]he police went upstairs and who do you 

think they brought down? [Giguere], the guy that didn’t live there.” (Tr. 377.)

Cleveland Police Vice Unit Detective Matthew Randolph (“Detective 

Randolph”) testified that he entered 3811 Muriel and went directly upstairs to the 

bedroom at the end of the hallway after SWAT advised the house was cleared. He 

went directly there because he received information that there was a firearm near 

the bedroom closet; he found the firearm in that vicinity. Detective Randolph 

identified the revolver that he located in the bedroom near the closet, as well as 

screenshots of his body camera footage showing the firearm’s placement on a 
nightstand that was located in a corner behind an open door “where the door swings 

out to the closet.” (Tr. 394, 411.)

Detective Randolph testified that he continued to search the bedroom 

after he found the firearm and found several used and fresh needles, suggesting 

intravenous drug use. Detective Randolph further stated that he found a backpack

containing ammunition for a .38 Smith & Wesson, personal identifier cards for 

Giguere, and a pill bottle in the name of another individual. Detective Randolph 

authenticated his body camera footage that captured his removal of the ammunition 

and cards from the backpack and identified the ammunition itself, which matched 

the firearm that was recovered. Detective Randolph testified that three scales, two 

of which later tested positive for drug residue, were also located in the bedroom.

Cleveland Police Vice Unit Detective William Salupo (“Detective 

Salupo”) assisted Detectives Smith and Randolph with the April 2022 search 

warrant by taking inventory of the confiscated items found inside 3811 Muriel. 

Detective Salupo identified the search warrant inventory sheet and some of the 

items, including suspected heroin found on the steps and kitchen floor and the three 

scales and loaded syringes found in an upstairs bedroom. Detective Salupo testified 

that an H&R Arms revolver, ammunition, pills, and Holz’s personal papers were also 

located in the upstairs bedroom. 

During the execution of the search warrant, Detective Smith had a 

conversation with Giguere about his whereabouts when SWAT entered 3811 Muriel 
and informed Giguere a firearm was located in Holz’s bedroom. Detective Smith 

testified:

While on scene, we — I asked the male sitting over at the table over 

there * * * what room he was located in. He said upstairs, and I said in 

[Holz’s] room? He said yes. I said, you will be going to jail today, and 

he said, what for, and I said there was a gun in the room. Once I 

mentioned there was a gun in the room, he didn’t have a rebuttal. He 

didn’t say, well, that’s not my gun. He didn’t say nothing like that at 

the time. 

(Tr. 285.) A portion of Detective Smith’s body camera footage was played for the 

jury, depicting this exchange. 

Cleveland Police Vice Unit Detective Prebhkirandip Singh (“Detective 

Singh”) was also involved in the execution of the search warrant at 3811 Muriel. 

Detective Singh testified that he advised Giguere of his Miranda rights and searched 

his person in the living room. Detective Singh believed that SWAT had previously 

detained Giguere and brought him down from the upstairs bedroom. Detective 

Singh identified portions of his body camera footage, which depicted his search of 

Giguere. Detective Singh recalled that he asked Giguere if anything was going to 

poke him, and Giguere told him that he had two syringes. Detective Singh testified 

that he located the syringes containing suspected narcotics in Giguere’s left pocket. 

Detective Randolph testified that one of the syringes on Giguere’s 

person tested positive for fluorofentanyl, methamphetamine, 4 AMPP, and fentanyl. 

A second syringe tested positive for fluorofentanyl, 4 AMPP, and fentanyl while 

another other tested positive for methamphetamine, 4 AMPP, and fentanyl. 
When Giguere was leaving, Detective Smith testified that Giguere 

gave Holz a kiss and asked why she was going to jail. Detective Smith recalled, “I 

said, well, she’s going to jail for the same thing as you, and he said, well, everything 

there is mine.” (Tr. 288.) Detective Salupo identified himself in Detective Smith’s 

bodycam footage and offered further testimony regarding the exchange:

We were leaving the scene and some people were going to jail, some 

people were not. We were walking individuals out of the house, and the 

defendant was unsure about one of the individuals that was going with 

us and why, and he brought up a question on why somebody else was 

going to jail when he saw this person, one of the females walking behind 

him. He wanted to know why they were going to jail. And Detective 

Smith informed him that for the same reason you are, which meant for 

the drugs and the gun. I’m assuming he understood that to be that 

because he knew why he was going to jail so I assume when Detective 

Smith said the same reason you are, he understood that’s why she was 

going jail and he immediately came back on his own and said that’s all 

mine, along the lines of that’s all mine.

(Tr. 321.)

On cross-examination, Detective Smith admitted that he had no firsthand knowledge of where Giguere was secured because SWAT secured him, but 

confirmed Giguere told him he was in the upstairs bedroom and no one else was 

located upstairs. Detective Smith stated that “[w]ithin constructive possession of 

that bedroom where [Giguere] was located at, the gun was readily available to him” 

and, “[a]s far as I was concerned, [the gun] belonged to both [Holz and Giguere].” 

(Tr. 295, 301.) On cross-examination, Detective Randolph agreed that it was safe to 

say that they really did not know who the gun or backpack found in the bedroom 

belonged to.
After its exhibits were admitted into evidence, the state rested. 

Giguere then called two witnesses on his behalf and testified in his own defense. 

Following Giguere’s testimony, the defense rested and the trial court charged the 

jury. Later that day, the jury returned its verdicts. Relevant to the one-year firearm 

specification charged under Count 3, the jury specifically found that “the State did 

prove beyond a reasonable doubt that [Giguere] had a firearm on or about his person 

or under his control or acted with another who possessed a firearm while 

committing the offense of drug possession.” 

The trial court sentenced Giguere to the following: 

The court imposes a prison sentence at the Lorain Correctional 

Institution of 24 month(s). Court addresses merger of offenses. State 

and defense agree: Counts 1 and 2 and Counts 3 and 4 merge for the 

purposes of sentencing. The state elects the court to sentence on 

Counts 1 and 3. Count 1 — 12 months in prison. Count 3 — 1 year prison 

sentence for the firearm specification to run prior to and consecutive to 

12-month prison sentence for the underlying offense. Count 7 — 12 

months in prison. All counts to run concurrent to one another, total 

prison sentence of 24 months.

(Judgment Entry, 01/30/23.)

Giguere now appeals his conviction for the firearm specification 

under Count 3. 

II. Law and Analysis

A. One-Year Firearm Specification and Sufficiency of the 

Evidence

Giguere only challenges the sufficiency of the evidence the state 

produced to find him guilty of the one-year firearm specification under Count 3, 
drug possession. While Giguere admits that he is guilty of possessing drugs as found 

in Count 3, he does not agree that he should be convicted of the one-year firearm 

specification, which requires that Giguere had a firearm on or about his person or 

under his control while committing the underlying offense. Specifically, Giguere 

argues that the state failed to present sufficient evidence that he owned or was using, 

carrying, or within immediate physical reach of a firearm when the syringes with 

drugs were found on him or when he committed the crime of drug possession.

Giguere contends that he should not have to serve an additional one-year sentence 

for a gun found in Holz’s bedroom. 

We note that within the first assignment of error, Giguere discusses 

the firearm-specification jury instruction given as it relates to his sufficiency 

argument without providing any substantive analysis or assigning separate error. 

As a result, this court will limit its analysis to whether the state produced sufficient 

evidence to prove the essential elements of the one-year firearm specification under 

Count 3 beyond a reasonable doubt.

R.C. 2941.141(A) states, in relevant part, that a one-year mandatory 

term may be imposed under R.C. 2929.14(B)(1)(a)(iii) if “the offender had a firearm 

on or about the offender’s person or under the offender’s control while committing 

the offense.” “Generally, ‘on or about his person or under his control’ or actual 

possession ‘“means that “the firearm was either carried on the defendant’s person 

or was so near the defendant’s person as to be conveniently accessible and within 

his immediate physical reach.”’” State v. Carson, 8th Dist. Cuyahoga No. 104998, 
2017-Ohio-7243, ¶ 15, quoting State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-

Ohio-4006, ¶ 11, quoting 2 Ohio Jury Instructions, CR Section 4 at 127 (2008); 3 

Ohio Jury Instructions, CR Section 541.141 (Rev. Oct. 3, 2015). 

However, possession of a substance or object, like a firearm, may also 

be constructive. Id. at ¶ 16, citing State v. Jackson, 8th Dist. Cuyahoga No. 97743, 

2012-Ohio-4278, ¶ 38, citing State v. Haynes, 25 Ohio St.2d 264, 269-270, 267 

N.E.2d 787 (1971). This court explained:

Constructive possession exists when an individual knowingly exercises 

dominion and control over an object, even though that object may not 

be within the individual’s immediate physical possession. State v. 

Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus; 

Westlake v. Wilson, 8th Dist. Cuyahoga No. 96948, 2012-Ohio-2192, ¶ 

36. “A party has constructive possession where, conscious of its 

presence, he exercises dominion and control over something even 

though it is not within his immediate physical possession.” State v. 

Harry, 12th Dist. Butler No. CA2008-01-013, 2008-Ohio-6380, ¶ 48, 

citing Hankerson at 91. The crucial issue therefore is not whether the 

accused has actual physical contact with the item, but whether the 

accused is capable of exercising dominion and control over the 

substance or object. State v. Brooks, 113 Ohio App.3d 88, 90, 680 

N.E.2d 248 (6th Dist.1996), citing State v. Wolery, 46 Ohio St. 2d 316, 

332, 348 N.E.2d 351 (1976).

Id. 

Consistent with other Eighth District decisions, in Carson, this court 

held that the state may demonstrate a defendant has dominion and control over a 

firearm for the purposes of R.C. 2941.141 by proving constructive possession of that 

firearm. Id. at ¶ 17, citing State v. Easterly, 8th Dist. Cuyahoga No. 94797, 2011-

Ohio-215, ¶ 24, citing State v. Davis, 8th Dist. Cuyahoga No. 93844, 2010-Ohio5123, State v. Wilkins, 12th Dist. Clinton No. CA2007-03-007, 2008-Ohio-2739, 
and State v. Conway, 8th Dist. Cuyahoga No. 86140, 2005-Ohio-6634. This court

further held that “the state need only show that the defendant had possession or 

constructive possession ‘at some point’ during the commission of the crime.” Id. at 

¶ 20, citing State v. Benton, 8th Dist. Cuyahoga No. 82810, 2004-Ohio-3116, ¶ 30. 

Indeed, “the firearm specification statute ‘does not require that the firearm be used 

in the commission of the felony, or that the defendant acquire the firearm before 

beginning the crime; all that is necessary is that the defendant have the firearm on 

his person or under his control at some point during the commission of the crime.’”

Benton at ¶ 29, quoting State v. Powell, 59 Ohio St.3d 62, 63, 571 N.E.2d 125 (1991).

The test for sufficiency requires a determination of whether the 

prosecution met its burden of production at trial. State v. Bowden, 8th Dist. 

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. An appellate court’s function when 

reviewing sufficiency is to determine “‘whether, after viewing the evidence in a light 

most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable doubt.’” State v. 

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State 

v. Jenks, 61 Ohio St.3d 259, 259, 574 N.E.2d 492 (1991), paragraph two of the 

syllabus. An appellate court does not review whether the state’s evidence is to be 

believed but whether, if believed, the evidence admitted at trial supported the 

conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, 

citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). 
The state may use direct evidence, circumstantial evidence, or both to 

prove the essential elements of an offense. State v. Rubin, 8th Dist. Cuyahoga No. 

106333, 2018-Ohio-3052, ¶ 26, citing Jenks at 272. “Direct evidence exists when ‘a 

witness testifies about a matter within the witness’s personal knowledge such that 

the trier of fact is not required to draw an inference from the evidence to the 

proposition that it is offered to establish.’” State v. Wachee, 8th Dist. Cuyahoga No. 

110117, 2021-Ohio-2683, ¶ 36, quoting State v. Cassano, 8th Dist. Cuyahoga No. 

97228, 2012-Ohio-4047, ¶ 13. Conversely, “circumstantial evidence requires ‘the 

drawing of inferences that are reasonably permitted by the evidence.’” Id., quoting 

id. “‘Circumstantial evidence is proof of facts by direct evidence from which the trier 

of fact may infer or derive by reasoning other facts in accordance with the common 

experience of mankind.’” Id., quoting State v. Hartman, 8th Dist. Cuyahoga No. 

90284, 2008-Ohio-3683, ¶ 37. “Circumstantial evidence and direct evidence 

inherently possess the same probative value.” Jenks at paragraph one of the 

syllabus. This court has held that circumstantial evidence alone is sufficient to prove 

constructive possession. Carson at ¶ 19, citing State v. Baird, 8th Dist. Cuyahoga 

No. 96352, 2011-Ohio-6268, ¶ 19. 

The record reveals that a firearm was located in Holz’s bedroom

where Giguere stayed, along with a backpack containing cards personally identifying 

Giguere and ammunition matching the recovered firearm, and syringes and 

narcotics were located on Giguere’s person and throughout 3811 Muriel. Detective 
Smith testified that Giguere confirmed he was in Holz’s bedroom when police 

arrived. This exchange was captured by Detective Smith’s body camera footage. 

During Giguere’s testimony, he admitted that the backpack 

containing ammunition matching the firearm was his and claimed 97 percent of his 

belongings were in 3811 Muriel. Detective Randolph authenticated his body camera 

footage capturing his removal of the ammunition and cards identifying Giguere 

from the backpack. Moreover, Detective Smith testified that he informed Giguere 

that he was going to jail because “there was a gun in the room,” to which Giguere 

had no response. This testimony was corroborated by Detective Smith’s body 

camera footage. Detective Smith further testified that Giguere said “everything 

there is mine” when he later told Giguere that Holz was going to jail for the same 

reason. Detective Salupo witnessed this exchange and testified that Giguere 

“immediately came back on his own and said that’s all mine, along the lines of that’s 

all mine.” 

Reviewing this evidence in a light most favorable to the prosecution, 

we find that Giguere’s conviction under R.C. 2941.141(A) is supported by sufficient 

evidence. The direct and circumstantial evidence presented at trial is sufficient to 

establish that Giguere knowingly exercised dominion and control over the firearm, 

even though the firearm may not have been within his immediate physical 

possession. Thus, the evidence against Giguere, if believed, supports his conviction 

under R.C. 2941.141(A) because Giguere had constructive possession of the firearm

at some point while he was committing the felony offense of drug possession. 
Accordingly, we overrule Giguere’s first assignment of error.

B. Ineffective Assistance of Counsel

In his second assignment of error, Giguere argues that he was 

prejudiced by ineffective assistance of trial counsel because his appointed attorney 

failed to object to the allegedly misleading firearm-specification jury instruction. 

To establish ineffective assistance of counsel, Giguere must 

demonstrate that (1) counsel’s performance was deficient and (2) the deficient 

performance prejudiced the defendant so as to deprive him of a fair trial. State v. 

Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing 

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984). The failure to prove either prong of this two-part test makes it unnecessary 

for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389, 

721 N.E.2d 52 (2000), citing Strickland at 697.

Because Giguere argues that “a gun specification is limited to having 

a gun on your person or within immediate grasp to facilitate a criminal offense[,]”

he claims that the jury instruction was improper and misleading because it “directed 

[the jury] to find the penalty enhancement if a gun coincidentally happened to be 

within reach at the time of the offense” and “told [them] that ‘close’ was good 

enough.” Giguere asserts that the instruction “failed to instruct [the jury] that 

[Giguere] must have voluntarily brought the gun to his crime of [drug] possession.” 

The state contends that the jury instruction is not misleading and, as 

a result, Giguere’s trial counsel did not err by failing to object to it. The state argues 
that the instruction was derived from the Ohio Jury Instructions. Further, the state 

contends that Giguere’s argument is incorrect and misstates the law. The state 

maintains that Giguere “only needed to have control over the firearm” and he did 

not need to bring the firearm to the crime, be the owner of the gun, physically have 

the gun on his person, or use the gun to commit the offense of drug possession.

We find that the firearm specification jury instruction challenged by 

Giguere is not misleading when read in conjunction with the unchallenged jury 

instruction on constructive possession since it is supported by caselaw. The 

challenged instruction provided, in relevant part:

Firearm specification. If your verdict is guilty, you will separately 

decide whether the State proved beyond a reasonable doubt that the 

defendant had a firearm on or about his person or under his control or 

acted with another who possessed a firearm while committing the 

offense of drug possession. 

* * *

On or about person or under control. On or about the defendant’s

person or under the defendant’s control means that the firearm was on 

the defendant’s person or so near the defendant as to be conveniently 

accessible and within the defendant’s immediate physical reach.

(Tr. 544-545.) 

While Ohio Jury Instructions are not binding, the trial court’s 

instruction mirrors the Ohio Jury Instructions for a one-year firearm specification 

under R.C. 2941.141 and the definition for “on or about his/her person or under 

his/her control.” See 3 Ohio Jury Instructions, CR Section 541.141 (Rev. Oct. 3, 

2015). Additionally, the trial court provided an instruction for constructive 
possession under Count 3, which this court has found to be adequate proof of a

defendant’s control under R.C. 2941.141. State v. Robinson, 8th Dist. Cuyahoga No. 

105667, 2018-Ohio-285, ¶ 22; Carson, 8th Dist. Cuyahoga No. 104998, 2017-Ohio7243, at ¶ 15; Easterly, 8th Dist. Cuyahoga No. 94797, 2011-Ohio-215, at ¶ 24. Thus, 

we find no merit to Giguere’s unsupported assertion that “[t]he instruction is 

incorrect or misleading because it fails to inform [the jury] that the gun must have 

been voluntarily injected into the offense by the offender.” Indeed, R.C. 2941.141(A) 

requires the state prove only that Giguere had a firearm on or about his person or 

under his control while committing the offense. Because Giguere has not 

established that his trial counsel performed deficiently, he cannot gain reversal on a 

claim of ineffective assistance. 

Therefore, the second assignment of error is overruled.

Accordingly, judgment is affirmed. 

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. Case 

remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, P.J., and

MICHAEL JOHN RYAN, J., CONCUR