[Cite as State v. Wingfield, 2014-Ohio-2053.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 100020

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

DANIEL WINGFIELD

DEFENDANT-APPELLANT

JUDGMENT: 

REVERSED, SENTENCE VACATED, 

DEFENDANT DISCHARGED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-13-571453-A 

 BEFORE: Blackmon, J., Jones, P.J., and Rocco, J. 

 RELEASED AND JOURNALIZED: May 15, 2014
-iATTORNEY FOR APPELLANT

Kevin M. Cafferkey 

2000 Standard Building 

1370 Ontario Avenue 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Edward D. Byrdle 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
PATRICIA ANN BLACKMON, J.: 

{¶1} Appellant Daniel Wingfield appeals his conviction and assigns the 

following errors for our review: 

I. The court’s guilty verdict of having a weapon while under disability in 

violation of 2923.13(A)(3) was based upon insufficient evidence. 

II. The court’s guilty verdict of having a weapon while under disability was 

in violation of 2923.13(A)(3) was against the manifest weight of the 

evidence. 

III. The court erred when it imposed costs upon defendant without notifying 

him of them in open court. 

IV. The court erred when it improperly informed the defendant of his 

post-release requirements. 

{¶2} Having reviewed the record and pertinent law, we reverse Wingfield’s 

conviction, vacate the sentence, and discharge the defendant. The apposite facts follow. 

{¶3} On February 20, 2013, the Cuyahoga County Grand Jury indicted Wingfield 

on one count each of carrying a concealed weapon, having weapons while under 

disability, and tampering with evidence, with a one-year firearm specification attached. 

On March 1, 2013, Wingfield pleaded not guilty at his arraignment, and several pretrials 

followed. On May 28, 2013, the matter proceeded to a jury trial, with the charge for 

having weapons under disability being tried separately to the court. 

{¶4} At trial, Officer Eric Newton of the Cleveland Police Department’s Fourth 

District testified that on February 4, 2013, at approximately 6:00 p.m., he was on routine 

patrol with Officer Shane Bauhof in the area of East 103rd Street and Aetna Avenue in 

Cleveland, Ohio. Officer Newton described the location as a high crime area with 
known gang activity, where it is not uncommon to hear gunshots being fired, and where 

he has made numerous arrests. 

{¶5} He testified that as they were traveling west on Aetna Avenue, he observed 

a heavyset woman standing with a man at the intersection of East 103rd Street. He was 

certain that a hand-to-hand exchange took place, wherein the man handed the woman an 

unidentified object and the woman handed the man what appeared to be cash. Officer 

Newton testified that, in his experience, the behavior he observed was consistent with a 

drug transaction. 

{¶6} The officers approached the intersection, the man saw the police cruiser, 

crossed the street, and ran towards the Sunny Corner Store. Officer Newton, a passenger 

in the police cruiser, exited the vehicle and proceeded to pursue the man into the store. 

{¶7} Officer Newton testified that once both he and the man were inside the 

store, he recognized the man as Wingfield, and ordered him, by name, to stop. For a 

moment, he lost sight of Wingfield when Wingfield ducked around the corner of the 

counter located at the front of the store. Seconds later, Wingfield stood up, put his 

hands out and stated he had gone in the store to purchase Black and Mild cigars. 

{¶8} Wingfield told the officer that he only had a small amount of marijuana on 

his person. Officer Newton stated that Wingfield handed over a small bag of marijuana 

after he was patted down and led out of the store. 
{¶9} While in the store, Officer Bauhof found a gun on a shelf in the area where 

Wingfield had crouched down. Officer Newton testified that he and Officer Bauhof 

asked the store owner about the gun. The store owner responded that it was not his gun. 

{¶10} Officer Newton stated that he never saw Wingfield with the gun, that many 

individuals had been in the store that day, and that anyone could have entered the area 

where the gun had been found. 

{¶11} Officer Bauhof, who had entered the store moments after Officer Newton, 

testified that he had lost all visual contact with Wingfield until after he had been 

apprehended. Officer Bauhof asked the store owner whether he had seen Wingfield 

throw anything away, but the store owner indicated he did not know. Officer Bauhof 

found the loaded gun sitting upside down on a box pointing toward the peg board and 

leaning against another box. 

{¶12} Officer Bauhof stated that dispatch ran the serial number of the gun, but did 

not find a registered owner. Both officers remained on the scene until the Scientific 

Investigative Unit (“SIU”) arrived and dusted the gun for fingerprints. No fingerprints 

were found on the gun. 

{¶13} Officer Bauhof stated that after they had transported Wingfield down to 

central booking and were going up in the elevator, Wingfield indicated that the most he 

could be charged with was carrying a concealed weapon. Wingfield also stated: “I 

should have blown down on you.” Officer Bauhof testified that he took Wingfield’s 

comment as an attempt to make him angry. 
{¶14} The store owner, Rayan Morris, testified that the gun did not belong to him 

and that he was not allowed to carry a gun because he was on probation. Morris said that 

he did not see a gun when Wingfield ran into his store, and he stated that the area of the 

store where Wingfield had crouched down was publicly accessible; that there was no 

reason for Wingfield to be there because that is where he unloads merchandise and 

supplies. 

{¶15} Detective Gerald Sowul, from the Cleveland Police Department’s SIU, 

testified that they swabbed the gun for DNA, but the crime lab indicated that the swab 

could not be tested because the gun was not associated with a violent crime. Detective 

Sowul confirmed that no fingerprints were found on the gun. 

{¶16} The jury acquitted Wingfield of carrying a concealed weapon and of 

tampering with evidence. In the matter tried separately to the bench, the trial court 

found Wingfield guilty of having weapons while under disability. On June 

20, 2013, the trial court sentenced Wingfield to two years in prison. 

Sufficiency of Evidence 

{¶17} In the first assigned error, Wingfield argues his conviction was not 

supported by sufficient evidence. 

{¶18} The sufficiency of the evidence standard of review is set forth in State v. 

Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus: 

Pursuant to Criminal Rule 29(A), a court shall not order an entry of 

judgment of acquittal if the evidence is such that reasonable minds can 

reach different conclusions as to whether each material element of a crime 

has been proved beyond a reasonable doubt. 
See also State v. Apanovitch, 33 Ohio St.3d 19, 23, 514 N.E.2d 394 (1987); State v. 

Davis, 49 Ohio App.3d 109, 113, 550 N.E.2d 966 (1988). 

{¶19} Bridgeman must be interpreted in light of the sufficiency test outlined in 

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

{¶20} An appellate court’s function when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence submitted at trial to 

determine whether such evidence, if believed, would convince the average mind of the 

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is 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. 

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 

Consequently, the reviewing court ultimately must determine not whether the evidence is 

to be believed, but whether, if believed, the evidence against the defendant would support 

a conviction. State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). 

{¶21} Pursuant to R.C. 2923.13(A)(3), the statutory elements for the offense of 

having a weapon while under disability are that no person shall knowingly acquire, have, 

carry, or use any firearm and have a previous conviction for possession of drugs. 

{¶22} In the instant case, Wingfield argues that the state failed to present evidence 

that he exercised dominion and control of the gun that was found in an area accessible to 

the public; consequently, the trial court should have granted his Crim.R. 29 motion for 

acquittal. We agree. 
{¶23} In the instant case, Officer Newton testified that after pursuing Wingfield 

into the store, he lost sight of him momentarily, and then saw him stand up next to the far 

end of the counter where the gun was found. Here, although Officer Newton testified 

that he lost sight of Wingfield momentarily, he did not testify that this span of time was 

sufficient for Wingfield to take the gun from his person, wipe it clean of prints, carefully 

place it upside down between two boxes, and point it towards the peg board. 

{¶24} Instead, from Officer Newton’s testimony, we picture a fast unfolding of 

events from the moment he pursued Wingfield into the store, ordered him by name to 

stop, to when Wingfield ducked behind the counter and then stood up, and proclaimed 

that he only had a small amount of marijuana. From Officer Newton’s testimony, the 

jury, in acquitting Wingfield of carrying a concealed weapon and of tampering with 

evidence, most likely concluded that the momentary span of time when Wingfield ducked 

out of view was insufficient to effect placing the gun on the shelf in the manner described 

above. 

{¶25} In addition, neither the two officers, nor the store owner testified that they 

saw Wingfield with a gun. Further, the gun was discovered in an area of the store that 

was accessible to the public and the evidence established that there had been a lot of 

customer traffic in the store that day. Finally, the evidence established that no 

fingerprints were found on the gun. 

{¶26} Thus, based on the testimony of how the chase and quick apprehension of 

Wingfield unfolded, it is conceivable that any of the many customers or individuals who 
came in and out the store that day, placed the gun where it was found. Consequently, 

even in reviewing the above in a light most favorable to the prosecution, we cannot 

conclude that the state proved beyond a reasonable doubt that Wingfield actually or 

constructively possessed the gun found on the shelf in the store. 

{¶27} Nonetheless, the state counters that flight is consciousness of guilt and that 

Wingfield, upon seeing the police, ran into the store so that he could hide the gun before 

being apprehended. Still, this is not conclusive. It is also conceivable that Wingfield 

was attempting to hide the marijuana that he later admitted he possessed. Officer 

Newton admitted as much. The following exchange took place on cross-examination: 

Q. As far as you know, when you said you saw him duck down by these boxes, 

certainly he could have been putting weed in his pants, correct? That could 

have happened, couldn’t it? 

A. Yes. There is that possibility, sir. 

Q. I mean, you found the weed right on him, right? 

A. Yes, sir. 

Tr. 174. 

{¶28} The state also counters Wingfield’s statements that he could only be charged 

with carrying a concealed weapon and that he should have “blown down on” the officers, 

is consciousness of being found in possession of the gun. However, Office Bauhof 

perceived that Wingfield made the statements in an attempt to make him upset. 

{¶29} Finally, it is noteworthy that the jury acquitted Wingfield of carrying a 

concealed weapon and of tampering with evidence. The acquittal on the carrying a 
concealed weapon charge indicates that the jury did not conclude that Wingfield actually 

or constructively possessed the gun. 

{¶30} Moreover, the acquittal on the tampering with evidence charge, a charge that 

flowed from Wingfield’s alleged attempts to hide the gun, indicates that the jury did not 

conclude from the testimony that he had sufficient time to hide the gun when he ducked 

behind the counter. 

{¶31} An appellate court is not permitted to speculate about the reason for the 

inconsistency when it determines the validity of a verdict. State v. Morris, 8th Dist. 

Cuyahoga No. 94923, 2011-Ohio-824, citing State v. Trewartha, 165 Ohio App.3d 91, 

2005-Ohio-5697, 844 N.E.2d 1218, ¶16 (10th Dist.). We conclude, without speculating, 

that the state failed to present sufficient evidence to prove beyond a reasonable doubt that 

Wingfield was guilty of having weapons while under disability. As such, Wingfield’s 

motion for acquittal should have been granted. Accordingly, we sustain the first 

assigned error, vacate Wingfield’s conviction, and order him discharged. 

{¶32} Our disposition of the first assigned error, renders the remaining assigned 

errors moot. App.R. 12(A)(C)(2). 

{¶33} Judgment reversed, sentence vacated, and defendant discharged. 

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

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

LARRY A. JONES, SR., P.J., CONCURS; 

KENNETH A. ROCCO, J., DISSENTS 

(SEE ATTACHED DISSENTING OPINION) 

KENNETH A. ROCCO, J., DISSENTING:

{¶34} In my view the evidence was sufficient to support Wingfield’s conviction 

for having weapons while under disability under R.C. 2923.13. Because I would affirm 

the conviction, I dissent from the majority’s opinion holding otherwise. However, the 

record also demonstrates that the trial court made two sentencing errors that must be 

corrected. Accordingly, I would affirm in part and reverse in part and I would remand 

the case for the limited purpose of correcting the sentencing errors. 

{¶35} The evidence presented at trial amply supported Wingfield’s conviction 

for having weapons while under disability. I take issue with the majority’s treatment of 

the evidence on several grounds. First, the majority opinion characterizes the area where 

Wingfield had ducked down and where the gun was found as being “accessible to the 

public.” Maj. Op. ¶ 25. But the trial court heard testimony from the store clerk that 

this was his “private area.” Tr. 192. The clerk testified that he used this area to store 

goods for restocking, that the stacked boxes where the gun was found contained surplus 
items for sale, and that people do not hang out in that area of the store. Id. The 

majority opinion makes no mention of this testimony. 

{¶36} I also disagree with the majority’s conclusion that there was insufficient 

evidence to support the conviction because the state failed to demonstrate that Wingfield 

had sufficient time to hide a gun. According to the majority opinion, “[A]lthough 

Officer Newton testified that he lost sight of Wingfield momentarily, he did not testify 

that this span of time was sufficient for Wingfield to take the gun from his person, wipe it 

clean of prints, carefully place it upside down between two boxes, and point it towards 

the peg board.” Maj. Op. ¶ 23. First, there is no evidence that the gun was “carefully” 

placed on the boxes. And I fail to see how the gun’s placement “towards the peg board” 

has any bearing on how much time it would take Wingfield to stash the gun. Finally, 

there is no reason to believe that Wingfield would have needed time to wipe the gun clean 

of prints. The crime took place in Cleveland in February and so the trial court could 

easily infer that Wingfield was wearing gloves that day. 

{¶37} Finally, I take issue with the majority’s reliance on the fact that the jury had 

acquitted Wingfield for the separate charges of carrying a concealed weapon and 

tampering with evidence. Maj. Op. ¶29-30. Because counts within an indictment are 

not interdependent, we have held that consistency between verdicts is unnecessary. 

Morris, 8th Dist. Cuyahoga No. 94923, 2011-Ohio-824, ¶ 12. A conviction should 

generally be upheld regardless of whether it is rationally compatible with a verdict for 

acquittal on another charge within an indictment. Id. On appeal, we “not permitted to 
speculate about the reason for the inconsistency” when determining whether one of 

the verdicts is valid. Id., citing Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, 844 

N.E.2d 1218, ¶16. 

{¶38} In spite of the above, the majority finds it “noteworthy” that the jury 

acquitted Wingfield for carrying a concealed weapon and for tampering with evidence. 

Maj. Op ¶29. The majority opinion further concludes that the jury’s verdicts on these 

other counts indicates that the jury must have concluded that (1) Wingfield did not 

possess the gun; and (2) Wingfield did not have sufficient time to hide a gun when he 

ducked behind the counter. Id. ¶ 29-30. Under the law, the jury’s verdicts on these 

other counts is irrelevant to the question of whether there was sufficient evidence for the 

trial court to convict Wingfield for the charge that is the subject of this appeal. It is, 

therefore, inappropriate for the majority to discuss the jury’s verdicts on those separate 

charges.1

{¶39} The issue on appeal is whether there was sufficient evidence that Wingfield 

had constructive possession of the firearm. The state was required to prove that 

Wingfield exercised dominion and control over the firearm that he was conscious of its 

presence. See State v. Washington, 8th Dist. Cuyahoga Nos. 98882 and 98883, 

2013-Ohio-2904, ¶ 22. Viewing the evidence in the light most favorable to the 

 1

The majority does cite to our decision in State v. Morris and acknowledges that we are not 

permitted to speculate about the reasons for an inconsistent verdict. I am, therefore, perplexed as to 

why the majority discusses the jury’s verdicts on these other counts and why it attempts to discern 

what the jury must have concluded. 
prosecution, I would hold that reasonable minds could conclude that Wingfield 

constructively possessed the firearm. 

{¶40} Wingfield fled from the officers and ran into the store where he was found 

ducking down in a private area. After ducking down, Wingfield willingly approached 

the officers and admitted to having marijuana. Wingfield told the officers that he went 

into the store to purchase Black and Mild cigars, but there were no cigars in the area 

where he had ducked down, nor any other goods for sale. Law enforcement found a 

loaded gun in the location where Wingfield had ducked down. The store clerk was the 

only person who used this area of the store, and he testified that the firearm did not 

belong to him. The trial court was free to infer that Wingfield had ducked down to 

conceal the firearm. Because the state presented sufficient evidence to support the 

conviction, I would overrule the first assignment of error. 

{¶41} Because I would overrule the first assignment of error, I would also review 

Wingfield’s remaining three assignments of error. In his second assignment of error, 

Wingfield argues that his conviction was against the manifest weight of the evidence. I 

disagree. In support of this argument, he asserts that there were other plausible 

explanations as to how the firearm ended up in the store. Specifically, Wingfield posits 

that a gang member could have left it there or that it could have belonged to the store 

clerk, who was not allowed to carry a gun because of a previous marijuana conviction. 

But the store clerk testified that it did not belong to him, and the trial court was free to 

credit this testimony. The store clerk also testified that this was a private area for his 
personal use. The record does not indicate that the trial court clearly lost its way in 

convicting Wingfield nor that the conviction created a manifest miscarriage of justice. 

See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997) (setting forth the 

standard of review for a challenge based on the manifest weight of the evidence). I 

would, therefore, overrule the second assignment of error. 

{¶42} I would, however, sustain Wingfield’s third and fourth assignments of error. 

 Regarding the third assignment of error, the trial court did err in imposing court costs on 

Wingfield without first notifying him about the fines in open court. See State v. Joseph, 

125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 1. The proper remedy is to 

remand the case and to order that the trial court issue a new sentencing entry that deletes 

the imposition of court costs. See, e.g., State v. Shaffer, 8th Dist. Cuyahoga, Nos. 95273 

and 95274, 2011-Ohio-844, ¶ 18-19. 

{¶43} Turning to the fourth assignment of error, I agree with Wingfield that the 

trial court erroneously informed him that a three-year period of postrelease control was a 

mandatory part of his conviction for having weapons while under disability. Wingfield 

was convicted of a third-degree felony. The duration of postrelease control for a 

third-degree felony is set by R.C. 2967.28(C), and we have held that, under this provision, 

the specific duration of postrelease control is discretionary. State v. McGhee, 8th Dist. 

Cuyahoga No. 95036, 2011-Ohio-619, ¶ 11. Further, this discretion is left to the parole 

board, and not the court. Id. When R.C. 2967.28(C) is implicated, the trial court is 
“only required to put the appellant on notice that he may be subject to postrelease control 

for up to three years.” (Emphasis added.) Id.

{¶44} In the instant case, the trial court informed Wingfield at sentencing that 

“[y]ou’ll be subject to three years postrelease control upon your release 

* * * .” Tr. 332. The state concedes that this language suggests that the imposition of 

postrelease control was mandatory, not discretionary. I would, therefore, sustain the 

fourth assignment of error. The proper remedy is to remand the case for the limited 

purpose of imposing discretionary postrelease control pursuant to R.C. 2967.28(C) on 

Wingfield’s conviction for having weapons while under disability. See State v. 

Freeman, 8th Dist. Cuyahoga No. 100521, 2014-Ohio-1732, ¶ 11. 

{¶45} Because the conviction for having weapons while under disability was 

supported by sufficient evidence and was not against the manifest weight of the evidence, 

I would affirm the trial court’s conviction for having weapons while under disability. 

Because the majority opinion decides otherwise, I respectfully dissent. However, for the 

aforementioned reasons, I would reverse Wingfield’s sentence and remand with 

instructions that the trial court: (1) issue a new sentencing entry that deletes the 

imposition of court costs; and (2) impose discretionary postrelease control pursuant to 

R.C. 2967.28(C).