[Cite as State v. Marneros, 2021-Ohio-2844.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109258 

 v. : 

 

MICHAEL MARNEROS, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED 

RELEASED AND JOURNALIZED: August 19, 2021 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-19-638811-B 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Megan Helton, Assistant Prosecuting 

Attorney, for appellee. 

Joseph Pagano, for appellant. 

MARY EILEEN KILBANE, J.: 

Defendant-appellant Michael Marneros (“Marneros”) appeals his 

convictions for firearm-related offenses. For the reasons that follow, we affirm. 
PROCEDURAL AND FACTUAL BACKGROUND 

On April 4, 2019, Marneros was driving with codefendant Wayman 

Kent (“Kent”) in the front passenger seat to a gas station located at the intersection 

of East 131st Street and Harvard Avenue in East Cleveland. The vehicle belonged to 

his fiancée Terancita Jones-Green (“Green”), a retired Cleveland police officer. 

Earlier that morning, Marneros had dropped her off at church. 

The gas station had been reported for high drug activity to the 

Cleveland Police Vice Unit. In response to the reports, several vice officers were 

detailed to that area to conduct surveillance for drug activity. That day, Sergeant 

Jarrod Durichko (“Durichko”) was conducting surveillance with Detective Daniel 

Hourihan (“Hourihan”), Detective Robert Kowza (“Kowza”), and Detective Matthew 

Pollack (“Pollack”). They are not a traffic enforcement unit and generally do not 

stop vehicles for traffic violations. Durichko testified that the vice unit focuses 

mostly on drug enforcement, but also handles cases dealing with prostitution as well 

as liquor and gambling enforcement. 

The unit was conducting surveillance at the intersection of East 131st 

Street and Harvard Avenue, which included the gas station Marneros had pulled 

into. According to Hourihan, they were there specifically looking for drug activity 

and drug dealers. Durichko was undercover at the intersection, observing the gas 

station and looking for drug activity. The other detectives were in a takedown 

capacity, which means they were equipped to take action if Durichko viewed any 
criminal activity. Hourihan was in an unmarked car facing west on East 136th Street 

and Kowza and Pollack were in another vehicle together behind Hourihan. 

During their surveillance, Durichko witnessed Marneros’s vehicle 

pull into the gas station next to a gas pump, where three separate individuals each 

came up to the car, briefly leaned into the driver’s side window, and then walked 

away. Durichko testified that it was the three individuals approaching Marneros’s 

vehicle and sticking their head in the window that were “red flags” for him that there 

was likely a drug exchange occurring. However, no actual hand-to-hand exchange 

of drugs or money was witnessed by the officers. 

As Marneros was leaving the gas station parking lot, he turned left to 

head east on Harvard Avenue without using his turn signal. Because Marneros did 

not use a turn signal, Durichko radioed Hourihan, who was on East 136th Street, to 

conduct a traffic stop of Marneros’s vehicle for a traffic violation. As Marneros 

passed East 136th Street, Hourihan pulled Marneros over. Upon stopping the car, 

Hourihan spoke with Marneros and learned his driver’s license was under 

suspension. Hourihan removed Marneros from the vehicle and conducted a patdown, finding a small bag of marijuana. At this time, Hourihan radioed Pollack and 

Kowza to assist him with the stop. They arrived and Pollack began speaking with 

Kent. 

While detained in handcuffs, Marneros called Green to inform her 

about the traffic stop of her vehicle. After speaking with her, Marneros informed the 

officers that there was a firearm in the vehicle. Green claimed she had placed her 
firearm in between the driver’s seat and the center front console, which Marneros 

conveyed to the officers. Upon learning this, the officers searched the vehicle and 

found the firearm and a box of ammunition under the driver’s seat. The firearm’s 

serial number was scratched off. In the meantime, Kent was detained and patted 

down by Pollack, who found contraband in Kent’s underwear. Both men were 

arrested and taken to jail. Marneros was issued a citation for violating CCO 431.14, 

signals before changing course, turning or stopping, a minor misdemeanor, and 

CCO 435.07(A), driving under a suspended/revoked license, a first-degree 

misdemeanor. 

On April 26, 2019, a Cuyahoga County Grand Jury indicted Marneros 

and Kent on charges that arose out of the April 4, 2019 traffic stop. Marneros was 

charged with: Count 1, having weapons while under disability in violation of R.C. 

2923.13(A)(2), a third-degree felony; Count 2 improperly handling firearms in a 

motor vehicle in violation of R.C. 2923.16(B), a fourth-degree felony; Count 3 

carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a fourth-degree 

felony; and Count 4 possessing a defaced firearm in violation of R.C. 

2923.201(A)(2), a misdemeanor of the first degree. Kent was charged with drug 

offenses for the drugs found on his person. 

Thereafter, various pretrial hearings occurred. Kent’s counsel filed a 

motion to suppress, and the court held a hearing on the motion on August 6, 2019. 

Durichko, Hourihan, and Pollack testified at the suppression hearing. The court 

denied Kent’s motion to suppress. Marneros’s counsel never filed a motion to 
suppress on his behalf. A plea agreement was offered by the state, which required 

both Marneros and Kent to jointly accept the plea agreement, otherwise they would 

go to trial. The state offered to amend Count 1, to add the attempt statute to make 

the charge attempted having weapons while under disability, a fourth-degree felony 

and nolle Counts 2 and 3, leaving Count 4 as indicted. The deal would have reduced 

Marneros’s potential maximum prison sentence from 36 months to 19 months on 

the having weapons while under disability charge. Marneros declined this offer and 

chose to take the case to trial. 

On August 7, 2019, a joint jury trial commenced for both Marneros 

and Kent. The state called Mallory Foran, an employee of the Cuyahoga County 

Regional Forensic Science Laboratory in the firearm and toolmark section. She 

testified regarding the operability of the firearm found in Green’s vehicle, which she 

found to be operable as designed. The state also called Leslie Lemmberbrock, who 

testified as a forensic drug chemist for the Cuyahoga County Medical Examiner’s 

office regarding the drugs found during the traffic stop. Through testing, she was 

able to identify the substance in Marneros’s bag as marijuana and the substances in 

Kent’s bags as oxycodone, acetaminophen, heroin, fentanyl, cocaine, and tramadol. 

Finally, the state called Durichko, Pollack, and Hourihan. The defense only called 

Green, who testified regarding the firearm in her vehicle, and John Rogers, Kent’s 

previous employer. 

On August 12, 2019, the jury returned a verdict of guilty on all counts. 

A sentencing hearing was set for September 19, 2019. Marneros failed to attend this 
hearing and a capias was issued the same day. On October 18, 2019, Marneros was 

apprehended. On October 22, 2019, the court proceeded with a sentencing hearing 

where it imposed an aggregate 36-month sentence, the maximum sentences on all 

counts, and ordered them to run concurrently: 36 months for the weapons while 

under a disability charge, 18 months for the improperly handling firearms in a motor 

vehicle charge, 18 months for carrying a concealed weapon charge, and 6 months for 

possessing a defaced firearm. The court also advised Marneros of the possibility of 

a three-year discretionary period of postrelease control. 

This appeal follows. Marneros asserts five assignments of error: 

I. Appellant’s Sixth Amendment rights were violated because counsel 

did not file a motion to suppress and did not object to the testimony of 

Mallory Foran. 

II. Appellant’s convictions were not supported by sufficient evidence 

and the trial court erred by denying his motions for acquittal. 

III. The convictions were against the manifest weight of the evidence. 

IV. The trial court erred by giving the proposed jury instruction on 

constructive possession over appellant’s objection. 

V. Appellant’s sentence is contrary to law because the record does not 

support the imposition of maximum sentences on each count. 

LAW AND ANALYSIS 

Marneros’s first assignment of error alleges his Sixth Amendment 

rights were violated when he received ineffective assistance of counsel in two distinct 

instances in his case. Marneros alleges the first instance occurred when his trial 

counsel failed to file a motion to suppress the firearm found during the initial traffic 

stop, the basis for all four charges and convictions. Marneros alleges the officers did 
not have probable cause to justify the traffic stop, which would mean that the firearm 

should have been suppressed and the state would not have had evidence to support 

any of his four charges. The second instance of ineffective assistance occurred when 

trial counsel failed to object to Mallory Foran’s (“Foran”) testimony regarding 

operability of the firearm found in his vehicle. 

Article I, Section 10 of the Ohio Constitution and the Sixth 

Amendment of the United States Constitution grant a defendant the right in all 

criminal prosecutions to have counsel’s assistance for one’s defense. The Supreme 

Court of the United States has reasoned that the right to counsel for one’s defense 

entails having the right to effective assistance of counsel. McMann v. Richardson, 

397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). To that effect, the 

United States Supreme Court has established the elements required to prevail on an 

ineffective assistance of counsel claim, which the Ohio Supreme Court has adopted. 

See Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). 

One must show two things to succeed on such a claim: (1) counsel 

substantially violated an essential duty to the client, which requires showing that 

counsel’s representation fell below an objective standard of reasonableness, and (2) 

the violation prejudiced the defense, which requires showing that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceedings would have been different. Bradley at 141-142, citing Strickland. 
Further, “trial counsel is entitled to a strong presumption that all 

decisions fell within the wide range of reasonable, professional assistance.” State v. 

Sallie, 81 Ohio St.3d 673, 675, 693 N.E.2d 267 (1998). Because of this presumption 

that a properly licensed attorney is competent, the burden of proof for these claims 

is high. State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). “Judicial 

scrutiny of counsel’s performance is to be highly deferential, and reviewing courts 

must refrain from second-guessing the strategic decisions of trial counsel.” State v. 

Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). 

This court has held that to establish ineffective assistance of counsel 

for failure to file a motion to suppress, one must prove that: (1) there was a basis to 

suppress the evidence in question and (2) that failure to file the motion to suppress 

caused prejudice. State v. Garcia, 8th Dist. Cuyahoga No. 94386, 2010-Ohio-5780, 

¶ 8, citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d; State 

v. Robinson, 108 Ohio App.3d 428, 433, 670 N.E.2d 1077 (3d Dist.1996). Failure to 

file a motion to suppress is not per se ineffective assistance of counsel. Garcia at ¶ 

8 (citations omitted). Put simply, failure to file a motion to suppress constitutes 

ineffective assistance of counsel only if the motion would have been granted. State 

v. Willis, 8th Dist. Cuyahoga No. 89044, 2008-Ohio-444, ¶ 48, quoting State v. 

Kuhn, 9th District Lorain No. 05CA008859, 2006-Ohio-4416, ¶ 11, citing Robinson. 

Therefore, we must begin the analysis of this assignment of error by 

analyzing whether Marneros would have been successful on a motion to suppress 

the evidence found as a result of the traffic stop. If the motion would have been 
successful, we will examine whether the failure to file this motion prejudiced 

Marneros such that his Sixth Amendment rights were violated. Motions to suppress 

the evidence found during a traffic stop are granted when the stop violates one’s 

Fourth Amendment rights against unreasonable searches and seizures. State v. 

Fears, 8th Dist. Cuyahoga No. 94997, 2011-Ohio-930, ¶ 13. 

Article I, Section 14, of the Ohio Constitution and the Fourth 

Amendment to the United States Constitution protect against unreasonable 

governmental searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 

L.Ed.2d 889 (1968). A traffic stop constitutes a seizure within the meaning of 

the Fourth Amendment. State v. Taylor, 2020-Ohio-5079, 161 N.E.3d 844, ¶ 38 

(8th Dist.), citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 

660 (1979). 

A permissible traffic stop occurs when a police officer has probable 

cause to reasonably believe a traffic violation has occurred or was occurring. State 

v. Uyi Okundaye, 8th Dist. Cuyahoga No. 94796, 2010-Ohio-6363, ¶ 15, citing 

Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The 

Ohio Supreme Court has held that “as long as the officer has probable cause to 

believe that a traffic violation has occurred or was occurring, the resulting stop is not 

unlawful and does not violate the Fourth Amendment.” Dayton v. Erickson, 76 

Ohio St.3d 3, 1996-Ohio-431, 665 N.E.2d 1091, ¶ 9. 

A reviewing court must determine whether a law enforcement officer 

possessed probable cause to stop a vehicle by examining the “totality of the 
circumstances.” State v. McDonald, 4th Dist. Washington No. 04CA7, 2004-Ohio5395, ¶ 19. This requires the court to make “an objective assessment of a police 

officer’s actions in light of the facts and circumstances.” Cleveland v. Jones, 8th 

Dist. Cuyahoga No. 107257, 2019-Ohio-1525, ¶ 14, quoting Bowling Green v. 

Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698, ¶ 14. However, the 

Ohio Supreme Court has held that an officer who has “probable cause necessarily 

has a reasonable and articulable suspicion * * * to justify a stop.” State v. Mays, 119 

Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23. 

Marneros argues that the officers in this case had neither probable 

cause that a traffic violation occurred nor reasonable articulable suspicion that 

criminal activity was afoot at the time they stopped him. Examining the totality of 

the circumstances, we disagree. 

The First District’s recent decision in State v. Brown, 1st Dist. 

Hamilton No. C-190755, 2021-Ohio-2193, exemplifies the types of stops that are not 

permissible and easily distinguishes the facts of this case. There, Officer Sullivan 

observed Brown in a UR Mart parking lot sitting in his vehicle talking. He observed 

the driver of a red pickup truck parked in front of Brown engage in a hand-to-hand 

exchange for drugs at his truck before leaving the parking lot. Id. at ¶ 5-6. Brown 

pulled out with the pickup truck and drove behind it. Id. Sullivan radioed two 

officers in their cruiser to pull over the pickup truck while Brown was behind it. Id. 

at ¶ 7. Brown then “slow rolled” past the officers and the stopped pickup truck before 

driving into a casino parking garage. Id. Sullivan then followed Brown into the 
parking garage and without seeing any traffic violations or Brown breaking any 

other laws, he ordered an officer to stop Brown’s vehicle for a drug investigation. Id. 

at ¶ 9. It took eighteen minutes for the requested drug dogs to arrive and search 

Brown’s vehicle where they found a digital scale with drug residue on it. Id. The 

trial court granted the defense’s motion to suppress this evidence alleging the stop 

was impermissible. Id. at ¶ 12. 

The First District affirmed the trial court’s grant of the motion to 

suppress holding that Sullivan’s “hunch” of criminal activity was insufficient to 

establish a reasonable suspicion to believe that Brown was committing a crime to 

justify the stop. Id. at ¶ 25. This “hunch” was not based on any observed criminal 

activity like hand-to-hand exchanges, nor did he witness Brown at any point talk to 

anyone selling drugs in the parking lot. Id. at ¶ 24. Because Sullivan did not witness 

Brown violate any laws and Sullivan was unable to articulate specific facts indicating 

Brown was engaged in drug trafficking the stop was impermissible. Id. at ¶ 25. 

Unlike the officers in Brown, here the officer did in fact witness 

Marneros commit a traffic offense. Once Durichko witnessed Marneros pull out of 

the gas station without using his turn signal, a traffic violation of CCO 431.14, the 

officers had probable cause to effectuate a valid traffic stop of Marneros’s vehicle. 

Erickson, 76 Ohio St.3d 3, 1996-Ohio-431, 665 N.E.2d 1091; State v. Newsome, 8th 

Dist. Cuyahoga No. 93328, 2010-Ohio-2891, ¶ 24; State v. Reedy, 5th Dist. Perry 

No. 12-CA-1, 2012-Ohio- 4899, ¶ 20. And as the Ohio Supreme Court has also held, 

an officer who has “probable cause necessarily has a reasonable and articulable 
suspicion * * * to justify a stop.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio4539, 894 N.E.2d 1204, ¶ 23. 

As such, because the stop was valid, there was no basis for the 

evidence to be suppressed, which means any motion to suppress filed by Marneros’s 

trial counsel would have been denied. With no basis for the motion to suppress, we 

find that counsel did not violate any duty to Marneros. Bradley, 42 Ohio St.3d 136, 

538 N.E.2d 373 (1989). Therefore, Marneros’s trial counsel’s decision not to file a 

motion to suppress was not ineffective assistance of counsel. Garcia, 8th Dist. 

Cuyahoga No. 94386, 2010-Ohio-5780, ¶ 8, citing Adams, 103 Ohio St.3d 508, 

2004-Ohio-5845, 817 N.E.2d 29. 

FORAN TESTIMONY 

Marneros also argues in his first assignment of error that his trial 

counsel was ineffective for not objecting to Foran’s testimony. Marneros claims 

Foran’s testimony regarding the operability of the firearm found in his vehicle 

during the stop should have been inadmissible because she did not qualify as an 

expert. 

“The admission or exclusion of expert testimony rests within the 

sound discretion of the trial court.” State v. Williams, 4 Ohio St.3d 53, 57-58, 446 

N.E.2d 444 (1983), citing State v. McDowell, 10th Dist. Franklin No. 10AP-509, 

2011-Ohio-6815, ¶ 15. In regard to the ineffective assistance of counsel “[s]trategic 

decisions by defense counsel, including the decision not to object to certain 
testimony, fall within the realm of trial tactics and do not establish ineffective 

assistance of counsel.” State v. Owens, 8th Dist. Cuyahoga No. 98165, 2012-Ohio5887, ¶ 19. 

The state had the burden of proving that the “firearm” found in 

Marneros’s vehicle, as used in R.C. 2923.13, was operable or readily capable of being 

rendered operable. State v. Mays, 6th Dist. Lucas No. L-12-1173, 2013-Ohio-3553, 

¶ 16. The state can prove that a firearm was operable or readily rendered operable 

in a variety of ways. State v. Hayes, 8th Dist. Cuyahoga No. 93785, 2010-Ohio5234, ¶ 18. When determining the operability of a firearm, “the trier of fact may rely 

upon circumstantial evidence, including, but not limited to, the representations and 

actions of the individual exercising control over the firearm.” R.C. 2923.11(B)(2); 

State v. Hayes, 8th Dist. Cuyahoga No. 93785, 2010-Ohio-5234, ¶ 17. The Ohio 

Supreme Court has held that “the state can rely upon all of the surrounding facts 

and circumstances” in order to demonstrate that a certain object at issue constitutes 

a firearm and that “proof of the existence of a firearm may be based on lay testimony, 

and is not dependent on an empirical analysis of the gun.” In re C.B., 8th Dist. 

Cuyahoga No. 95256, 2010-Ohio-5620, ¶ 13, quoting State v. Murphy 49 Ohio St.3d 

206, 207-209, 551 N.E.2d 932 (1990). 

In In re C.B., this court examined a similar situation where a 

defendant failed to object to testimony regarding the operability of the firearm found 

in his vehicle. In re C.B., 8th Dist. Cuyahoga No. 95256, 2010-Ohio-5620, ¶ 12. The 

testimony came from an officer who testified as to his examination of the firearm, 
professional experience, training, and previous use of the same type of firearm. Id. 

at ¶ 14-15. The testimony was subject to cross-examination and even though not 

officially qualified as an expert, his testimony was sufficient to establish the 

operability of the firearm beyond a reasonable doubt. Id. at ¶ 16. 

In the instant case, while Marneros’s trial counsel did not object to 

Foran’s testimony, Foran was clearly qualified to testify as an expert witness 

regarding the firearm. She testified that her education included a Bachelor of 

Science in forensic science along with an in-house training period of about one year 

under a court-qualified firearms examiner, which included training of safe handling 

of firearms and test firing them under supervision. She was also certified by the 

Bureau of Alcohol, Tobacco, Firearms and Explosives National Firearms Examiner 

Academy in a yearlong program, which involved instruction from firearm examiners 

across the country. She also testified to her knowledge and experience with firearms 

generally as a scientist at the Cuyahoga County Regional Forensic Science 

Laboratory. She testified that she has worked in the Firearm and Toolmark section 

of the laboratory for over two years and one of her main duties includes test firing 

firearms to see if they work as designed. She testified that she has tested over 400 

firearms to date. 

Foran also testified in detail as to how she normally tests the firearms 

by firing bullets into a water tank and how results are documented in lab reports. 

Last, she testified how she tested the operability of the firearm found in Marneros’s 

vehicle and the results of the test indicated the firearm was operable. Defense 
counsel did not object to her testimony regarding the firearm’s operability. Foran’s 

testimony was subject to cross-examination by defense counsel who questioned her 

vigorously regarding this as her first time testifying in court and her lack of 

knowledge about the second location for the firearm’s serial number, which she 

testified she did not know. 

In State v. Doumbas, 8th Dist. Cuyahoga No. 100777, 2015-Ohio3026, ¶ 67, this court held that counsel’s decision to rely on cross-examination of an 

expert, rather than objecting or trying to have it kept out with a motion in limine, is 

a strategic decision to weaken the influence of his testimony on the jury. “This type 

of strategic decision falls within the realm of professionally competent assistance 

and does not constitute deficient performance by appellant’s counsel. Id., see also

Owens, 8th Dist. Cuyahoga No. 98165, 2012-Ohio-5887, at ¶ 19 (“Strategic decisions 

by defense counsel, including the decision not to object to certain testimony, fall 

within the realm of trial tactics and do not establish ineffective assistance of 

counsel.”). 

Similarly, in this case, Marneros’s trial counsel likely did not object to 

Foran’s testimony because the objection would have been properly overruled 

because Foran was clearly qualified to testify regarding the operability of the 

firearm. Regardless, the decision to call an expert falls within the realm of trial 

tactics strategic decisions and does not establish an ineffective assistance of counsel 

claim. Id.; Owens at ¶ 19. As such, Marneros is unable to satisfy the first element of 

an ineffective assistance claim. Bradley at 141-142. 
Even if counsel had objected to her testimony, Marneros points to no 

evidence that suggests the trial court would have stricken her testimony for any 

reason or that the outcome of the trial would have been different. Furthermore, the 

testimony from Marneros’s fiancée, Green, regarding the firearms operability could 

have been utilized in Foran’s place, thereby establishing operability even had 

Foran’s testimony been striken. Therefore, Marneros’s counsel did not violate any 

essential duty to him and was not ineffective for not objecting to Foran’s testimony. 

Id. We overrule his first assignment of error. 

Insufficient Evidence 

Marneros’s second assignment of error alleges his convictions were 

not supported by sufficient evidence such that the trial court erred by denying his 

motions for acquittal. “An appellate court’s function in reviewing the sufficiency of 

the evidence to support a criminal conviction is to examine the evidence admitted at 

trial to determine whether such evidence, if believed, would convince the average 

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Rogers, 178 Ohio 

App.3d 332, 2008-Ohio-4867, 897 N.E.2d 1171, ¶ 41 (8th Dist.), citing State v. Jenks, 

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

essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient 

to sustain a verdict, is a question of law.” Id., quoting State v. Thompkins, 78 Ohio 

St.3d 380, 386, 678 N.E.2d 541 (1997). “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.” State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio3598, ¶ 12, citing Jenks at paragraph two of the syllabus. 

Specifically, Marneros argues the state failed to prove the mens rea 

element of the convicted offenses as well as the possession element. Each of the four 

offenses Marneros was convicted of required the state to put forth evidence that at 

some point, Marneros knowingly possessed the firearm found in his vehicle. “A 

person acts knowingly, regardless of his purpose, when he is aware that his conduct 

will probably cause a certain result or will probably be of a certain nature.” State v. 

Body, 8th Dist. Cuyahoga No. 109388, 2021-Ohio-703, ¶ 30 quoting R.C. 

2901.22(B). 

As for possession, a defendant can either actually or constructively 

possess a firearm. “Actual possession entails ownership or physical control, whereas 

constructive possession is defined as knowingly exercising dominion and control 

over an object, even though that object may not be within one’s immediate physical 

possession.” State v. Chandler, 8th Dist. Cuyahoga Nos. 93664 and 93665, 2011-

Ohio-590, ¶ 55, citing State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d 1362 

(1982). 

A review of the state’s evidence makes it clear that the state provided 

sufficient evidence for any rational trier of fact to conclude beyond a reasonable 

doubt that Marneros knowingly possessed this firearm. Officer Pollack testified that 

Marneros informed Officer Pollack about the firearms location in between the 

driver’s seat, where Marneros sat, and the center console. The firearm being found 
in his vehicle next to the driver’s seat, along with the likely visibility of the gun due 

to its location, is sufficient evidence for a jury to find that Marneros knew of the 

firearm and at the very least constructively possessed it by having the firearm in his 

vehicle which he was exercising control over while operating it. However, the jury 

could also find that he actually possessed that firearm. Contrary to Marneros’s 

arguments, fingerprint or DNA testing is not required to prove a defendant’s 

possession of a firearm. Therefore, we find the trial court did not err by denying 

Marneros’s motions for acquittal because there was sufficient evidence to support 

the convictions. We overrule Marneros’s second assignment of error. 

Manifest Weight 

Marneros’s third assignment of error alleges his convictions were 

against the manifest weight of the evidence. 

In assessing whether a conviction is against the manifest weight of the 

evidence, we examine the entire record, weigh the evidence and all reasonable 

inferences, and consider the witnesses’ credibility. Gerston v. Parma VTA, L.L.C., 

8th Dist. Cuyahoga No. 105572, 2018-Ohio-2185, ¶ 58. There is a presumption that 

the factfinder’s determinations are correct unless we find that the factfinder “clearly 

lost its way and created such a manifest miscarriage of justice that the verdict must 

be overturned and a new trial ordered.” Illum. Co. v. Bosemann, 2020-Ohio-3663, 

154 N.E.3d 1205, ¶ 28 (8th Dist.), quoting Gerston at ¶ 58-59. This is presumed 

because the trier of fact had the opportunity “to view the witnesses and observe their 

demeanor, gestures and voice inflections, and use these observations in weighing 
the credibility of the proffered testimony.” Gerston at ¶ 59, quoting Seasons Coal v. 

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). 

“A verdict supported by some competent, credible evidence going to 

all the essential elements of the case must not be reversed as being against the 

manifest weight of the evidence.” Gerston at ¶ 57, citing Domaradzki v. Sliwinski, 

8th Dist. Cuyahoga No. 94975, 2011-Ohio-2259, ¶ 6; C.E. Morris Co. v. Foley 

Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. A conviction should 

be reversed only in the most “exceptional case in which the evidence weighs heavily 

against the conviction.” State v. Philpott, 8th Dist. Cuyahoga Nos. 109173, 109174, 

and 109175, 2020-Ohio-5267, ¶ 77, quoting Thompkins, 78 Ohio St.3d 380, 388, 

678 N.E.2d 541 (1997). 

Marneros points to no evidence in the record to argue his convictions 

were against the weight of the evidence. Our review of the entire record does not 

convince us that this is an exceptional case where the evidence weighs heavily 

against the conviction. The only testimony weighing against his conviction is the 

testimony of Green, Marneros’s fiancée. Green testified that she had placed the 

firearm in the vehicle that morning and that Marneros did not know about it. 

However, it is within the jury’s authority to weigh witness credibility, and jurors do 

not have to accept all or any testimony as true. This evidence does not weigh so 

heavily as to convince us that the jury clearly lost its way or that a manifest 

miscarriage of justice occurred. Gerston at ¶ 58-59. Therefore, Marneros’s third 

assignment of error is overruled. 
Jury Instruction 

Marneros’s fourth assignment of error alleges that the trial court 

erred by providing the state’s proposed jury instruction on constructive possession 

because it is an incorrect statement of the law. We disagree. 

“Whether jury instructions correctly state the law is a legal issue that 

an appellate court reviews de novo.” State v. Echevarria, 8th Dist. Cuyahoga No. 

105815, 2018-Ohio-1193, ¶ 27. However, an incorrectly stated instruction is not 

sufficient for a reversal. “To show reversible error, the defendant must also 

demonstrate that he or she was prejudiced by the trial court’s refusal to give a 

requested jury instruction.” Echevarria at ¶ 29. “A reviewing court may not reverse 

a conviction in a criminal case due to jury instructions unless it is clear that the jury 

instructions constituted prejudicial error.” State v. Shepherd, 8th Dist. Cuyahoga 

No. 102951, 2016-Ohio-931, ¶ 25, quoting State v. McKibbon, 1st Dist. Hamilton No. 

C-010145, 2002-Ohio-2041, ¶ 27. To determine whether an erroneous jury 

instruction was prejudicial, a reviewing court must examine the jury instructions as 

a whole. State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 49. 

If the instruction was not prejudicial then, “[a]ny error, defect, irregularity, or 

variance which does not affect substantial rights shall be disregarded.” Shepherd at 

¶ 25, quoting Crim.R. 52(A). 

Marneros alleges the trial court improperly instructed the jury that it 

was permissible to infer that Marneros constructively possessed the firearm just 

because it was found in close proximity to him. Marneros points to the following 
transcript portion where the trial court read this jury instruction to support his 

position: 

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. A person 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. 

If the evidence demonstrates that the defendant was in close proximity 

to the contraband, such that the defendant was able to exercise 

dominion or control over the contraband, this constitutes 

circumstantial evidence that the defendant was in constructive 

possession of the items. 

Although mere presence in an area where a substance or object is 

located does not conclusively establish constructive possession, this 

presence, coupled with another factor probative of the dominion or 

control over the contraband, may establish constructive possession. 

Marneros emphasizes the second paragraph as being an example of the trial court’s 

improper instructions to the jury to infer that Marneros’s proximity to the firearm 

was sufficient to establish constructive possession. 

However, upon closer review of the entire instruction, it is clear that 

the trial court made sure to instruct the jury that proximity to the firearm was not 

enough to establish possession. First, in the third paragraph cited by Marneros, the 

judge instructs the jury that mere presence in an area does not conclusively establish 

constructive possession, i.e. that it is not permissible to infer possession just because 

of proximity without another probative fact established by evidence. The court goes 

on shortly thereafter to instruct the jury that: 

Possess or possession means having control over a thing or substance 

but may not be inferred solely from mere access to the thing or 
substance through ownership or occupation of the premise upon which 

the thing or substance is found. 

Again, the trial court specifically instructs the jury that mere proximity is not 

sufficient to establish possession. We find upon full review of the instructions in 

their entirety that the trial court’s jury instructions were proper. Even if the 

instruction was given in error, Marneros fails to point to any prejudice as a result of 

this instruction, such an error would be harmless. Therefore, we overrule his fourth 

assignment of error. 

Maximum Sentences 

Marneros’s fifth assignment of error alleges the trial court’s 

imposition of the maximum sentences for each count is not supported by the record 

and contrary to law. Appellate review of felony sentences is governed by R.C. 

2953.08(G)(2), which states that “an appellate court may vacate or modify a felony 

sentence on appeal only if it determines by clear and convincing evidence that the 

record does not support the trial court’s findings under relevant statutes or that the 

sentence is otherwise contrary to law.” State v. Evans, 8th Dist. Cuyahoga No. 

109619, 2021-Ohio-1411, ¶ 12, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 1. 

A trial court’s sentence is not clearly and convincingly contrary to law 

“where the trial court considers the purposes and principles of sentencing under 

R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12, 

properly applies post-release control, and sentences a defendant within the 

permissible statutory range.” State v. Thompson, 8th Dist. Cuyahoga No. 105785, 
2018-Ohio-1393, ¶ 7, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-

Ohio-2525, ¶ 10. “The record must indicate that the trial court considered all 

relevant factors required by R.C. 2929.11 and 2929.12, but the trial court has no 

obligation to state reasons to support its findings.” Evans at ¶ 12, quoting State v. 

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. 

Trial courts are not required to make factual findings on the record 

under R.C. 2929.11 or 2929.12 before imposing a maximum sentence. State v. 

Gohagan, 8th Dist. Cuyahoga No. 107948, 2019-Ohio-4070, ¶ 21, citing State v. 

Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 27. “Consideration 

of the factors is presumed unless the defendant affirmatively shows otherwise.” 

State v. Seith, 8th Dist. Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12, citing State v. 

Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234 ¶ 11. “Further, 

a trial court’s statement in its sentencing journal entry that it considered the 

required statutory factors alone is enough to fulfill its obligations under R.C. 2929.11 

and 2929.12.” Id., citing Keith at ¶ 11. 

In Seith, this court upheld the trial court’s imposition of the 

maximum felony sentences against the defendant because each sentence was within 

the statutory range, even if the highest maximum sentence. Seith at ¶ 13. Further, 

this court found that the trial court’s journal entry that stated it “considered all 

required factors of law” was enough to find that the court considered R.C. 2929.11 

and 2929.12 factors. Id. at ¶ 14. 
In the instant case, the jury found Marneros guilty of Count 1, having 

weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of the 

third degree, Count 2, improperly handling firearms in a motor vehicle in violation 

of R.C. 2923.16(B), a felony of the fourth degree, Count 3, carrying a concealed 

weapon in violation of R.C. 2923.12(A)(2), a felony of the fourth degree, and Count 

4, possessing a defaced firearm in violation of R.C. 2923.201(A)(2), a misdemeanor 

of the first degree. R.C. 2929.14(A)(1),(3), and (4) state that sentencing for felonies 

of the third degree shall be subject to a range of 9 to 36 months and felonies of the 

fourth degree are subject to a range of 6 to 18 months. R.C. 2929.24(A)(1) states 

that sentencing for a misdemeanor of the first degree shall be “not more than one 

hundred eighty days.” 

Here, the trial court sentenced Marneros to 36 months on Count 1, a 

felony of the third degree. On Counts 2 and 3, felonies of the fourth degree, he was 

sentenced to 18 months. Last, on Count 4, a misdemeanor of the first degree, he was 

sentenced to 6 months. Each sentence was the maximum sentence permitted and 

all were within the statutory range. The record reflects the trial court also 

considered Marneros’s extensive criminal history as well as his failure to appear for 

his first sentencing date. Just as in Seith, the trial court’s sentencing journal entry 

specifically states that it “considered all required factors of law.” Seith, 8th Dist. 

Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 14. Therefore, we find the trial court’s 

imposition of the maximum sentencing terms for Counts 1-4 are not contrary to law. 

Marneros’s fifth assignment of error is overruled. 
Accordingly, the judgment of the trial court 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. 

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

of the Rules of Appellate Procedure. 

____________________________ 

MARY EILEEN KILBANE, JUDGE 

MICHELLE J. SHEEHAN, P.J., and 

EILEEN T. GALLAGHER, J., CONCUR