The opinion
[Cite as State v. Brown, 2024-Ohio-440.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230034
TRIAL NO. B-2202816
Plaintiff-Appellee, :
VS. : O P I N I O N.
YAHMALE BROWN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 9, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Arenstein & Gallagher and William R. Gallagher, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Yahmale Brown appeals his conviction, following
a jury trial, for having weapons while under a disability (“WUD”). In two assignments
of error, Brown argues that his conviction was not supported by sufficient evidence
and was against the manifest weight of the evidence. Finding Brown’s arguments to be
without merit, we affirm the trial court’s judgment.
I. Factual and Procedural Background
{¶2} On June 16, 2022, the Hamilton County Grand Jury issued an
indictment charging Brown with WUD and eight drug offenses.
{¶3} At a jury trial, Cincinnati Police Officer Aubrey Pitts testified about an
investigation he conducted as part of his assignment to the Crime Gun Intelligence
Unit that ultimately led to Brown’s arrest. The target of the investigation was an
individual named Aaron Orr, who resided at 2938 Queen City Avenue, Apartment 6.
Officer Pitts believed that Orr was engaging in drug trafficking out of his apartment.
On February 14, 2022, Officer Pitts conducted surveillance on Orr’s residence while in
plain clothes and in an unmarked police vehicle. After witnessing Orr leave the
apartment in a wheelchair, get into a vehicle, and drive away, Officer Pitts effectuated
a traffic stop of Orr based on outstanding warrants. Orr was arrested, and his
apartment was secured to ensure that no persons entered or exited while a search
warrant was obtained. Orr asserted ownership over the items in the apartment and
never stated that any other persons resided there with him.
{¶4} Officer Pitts and Officer Broering conducted the search of the
apartment. Officer Broering found a social security card in Brown’s name in a back
room. He also found paperwork that Officer Pitts described as “a health document like
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OHIO FIRST DISTRICT COURT OF APPEALS
from the health department” addressed to Brown at the Queen City address. Officer
Broering described the paperwork found in the back room as “parole paperwork.” He
confirmed that it was addressed to Brown, but did not recall whether it reflected the
Queen City address. No photographs were taken of either the social security card or
paperwork, and these items were not admitted at trial.
{¶5} Four firearms were recovered during the search: an American Tactical
Rifle, a Hi-Point 9-mm firearm, a Taurus 1911 firearm, and a Draco Mini. All four
weapons were test fired and found to be in working order. The Taurus 1911 was found
in a sleeve of a couch designed to hold remotes and magazines. The Draco Mini was
found on the floor of the same room where Brown’s social security card was
discovered, and the Hi-Point firearm was found on a closet shelf in a bedroom in the
apartment. Photographs of these weapons were admitted into evidence.
{¶6} Several different drugs, including fentanyl, methamphetamine, and
marijuana, were recovered during the search, along with various drug paraphernalia,
including a scale. Brown’s fingerprints were not found on any of the recovered drugs
or weapons. After searching the apartment, Officer Pitts left a copy of the search
warrant behind.
{¶7} Officer Pitts listened to recorded jail telephone calls placed by Orr and
an individual named Ravea Barron, who was also arrested as a result of the
investigation into Orr. From listening to these calls, Officer Pitts gleaned a phone
number that he linked to Brown, and he subsequently pulled and listened to calls
between Orr and Brown.
{¶8} Several of these calls were played for the jury. Officer Pitts identified the
voices on the calls as belonging to Orr and Brown. Brown can be heard in the calls
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OHIO FIRST DISTRICT COURT OF APPEALS
referencing the search warrant that Officer Pitts left at the apartment. The calls also
reflected a discussion between Brown and Orr about the placement of the Taurus 1911
in the sleeve of the couch. During one of the calls, Orr mentioned leaving the
apartment in a wheelchair, prompting Brown to ask Orr how much later he left the
apartment after Brown. Orr responded “20 or 30 minutes.” The calls also contained a
reference to the paperwork that Officer Broering found.
{¶9} After developing Brown as a suspect, Officer Pitts conducted
surveillance on Brown for approximately three months. At no time during either
Officer Pitts’s surveillance of Brown or his surveillance of the Queen City apartment
prior to Orr’s arrest was Brown seen at the apartment.
{¶10} During his investigation, Officer Pitts obtained several photographs
from a social-media account belonging to Brown. One photograph depicted Brown
with three firearms in his possession on the balcony of the Queen City apartment.
According to Officer Pitts, “[t]he one in his right hand appears to be the Draco Mini
that was recovered, and in his left hand is another firearm. I can’t tell which one that
one is for sure. And then in his left-hand pocket, there’s another firearm that appears
to be a handgun.” Officer Pitts further stated that he believed the “AR” found during
execution of the search warrant was one of the weapons in the picture, but he “would
have to double-check.” He later stated that he recognized the guns in the photograph
of Brown and that they were three of the weapons recovered from the apartment.
Another photograph depicted Orr and Brown together. In it, Orr held currency in
multiple denominations and Brown held a blunt.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} The jury acquitted Brown of all eight drug charges but found him guilty
of WUD.1 The trial court sentenced Brown to three years of imprisonment.
II. Sufficiency and Weight of the Evidence
{¶12} In his first assignment of error, Brown argues that his conviction was
against the manifest weight of the evidence. In his second assignment of error, he
argues that his conviction was not supported by sufficient evidence. We address these
arguments together.
{¶13} When reviewing a challenge to the sufficiency of the evidence, “[t]he
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. Walker, 150 Ohio St.3d 409, 2016-
Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus, superseded by constitutional amendment
on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668
(1997), fn. 4. The court’s role is to ask “whether the evidence against a defendant, if
believed, supports the conviction.” (Emphasis sic.) State v. Jones, 166 Ohio St.3d 85,
2021-Ohio-3311, 182 N.E.3d 1161, ¶ 16.
{¶14} A challenge to the manifest weight of the evidence, on the other hand,
requires this court to “review the entire record, weigh the evidence, consider the
credibility of the witnesses, and determine whether the trier of fact clearly lost its way
and created a manifest miscarriage of justice.” State v. Powell, 1st Dist. Hamilton No.
1 Although the state presented evidence that four firearms were found in the apartment, it was only
required to prove that Brown possessed one of the firearms to support the WUD conviction.
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OHIO FIRST DISTRICT COURT OF APPEALS
C-190508, 2020-Ohio-4283, ¶ 16, citing State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997).
{¶15} Brown was found guilty of WUD in violation of R.C. 2923.13(A)(2). This
statute provides, as relevant to Brown, that “[u]nless relieved from disability under
operation of law or legal process, no person shall knowingly acquire, have, carry, or
use any firearm or dangerous ordnance, if * * * [t]he person * * * 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.” R.C. 2923.13(A)(2).
{¶16} The indictment alleged that Brown committed the WUD offense on or
about February 14, 2022, while he was under disability for a robbery adjudication.
Brown stipulated at trial that he was under disability on the date of the offense alleged
in the indictment.
{¶17} Brown argues that the sufficiency and weight of the evidence fail to
establish that he possessed a firearm on or about February 14, 2022. A WUD
conviction can be based on actual or constructive possession. State v. Williams, 197
Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 14 (1st Dist.), quoting State v.
English, 1st Dist. Hamilton No. C-080827, 2010-Ohio-1759, ¶ 31 (“To ‘have’ a firearm
within the meaning of the weapons-under-a-disability statute, the offender must
actually or constructively possess it.”); State v. Morris, 1st Dist. Hamilton Nos. C-
220651 and C-220652, 2023-Ohio-4622, ¶ 28 (the jurisprudence on constructive
possession is the same for the offense of WUD as it is for drug-possession offenses).
{¶18} Brown contends that the state waived its right to argue on appeal that
he constructively possessed a weapon because it failed to argue a theory of constructive
possession at trial and did not request a jury instruction on constructive possession.
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OHIO FIRST DISTRICT COURT OF APPEALS
We do not view the state’s argument in the trial court with respect to Brown’s
possession of a weapon so narrowly.
{¶19} Brown is correct that the trial judge did not instruct the jury on
constructive possession regarding the WUD charge. Rather, the judge instructed the
jury that it had to find that Brown “knowingly acquired, had, carried, or used” a
firearm on or about the date alleged. Nevertheless, Brown was not found in actual
possession of any of the weapons recovered from the apartment. The state, therefore,
could only have proceeded under a theory of constructive possession with respect to
those weapons.
{¶20} In response to a Crim.R. 29 motion made by Brown challenging the lack
of evidence establishing his connection to the drugs and weapons found in the
apartment, the state did not limit itself to a theory of actual possession. The state
argued that:
[H]e is living in the apartment, photographed with the guns. He is
photographed with money, indicias [sic] of drug trafficking. There is a
jail call where he indicates that he left 20 to 30 minutes prior to Mr.
[Orr] leaving the apartment and Mr. [Orr]’s arrest.
So we have him placing himself with—looking at the evidence in the
light most favorable to the prosecution, that this is Mr. Brown on these
jail calls and Mr. Brown putting himself in the apartment.
We also have the testimony from the officers, in the light most favorable
to the prosecution, about his personal paperwork, and I’ll note that one
of [those] piece[s] of paperwork was his Social Security card * * *.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} The state’s closing argument likewise argued to the jury that the
telephone calls between Brown and Orr established that Brown was living in the
apartment, as did the fact that Brown’s social security card was found in the
apartment.
{¶22} On this record, we hold that the state did not fail to argue a theory of
constructive possession during trial, and that it is not prohibited from making a
constructive-possession argument on appeal.
{¶23} Constructive possession is established where “the defendant exercised
dominion and control over an item, even though the item was not within his
immediate physical possession.” State v. Jackson, 1st Dist. Hamilton No. C-110570,
2012-Ohio-2727, ¶ 14. It “may be inferred where the defendant has control and
dominion over the premises and is aware that the item is on those premises.” Id.
Dominion and control, as well as whether a person was conscious of the presence of a
weapon, may be proven by circumstantial evidence. Williams, 197 Ohio App.3d 505,
2011-Ohio-6267, 968 N.E.2d 27, at ¶ 15. This court has held that “constructive
possession may be established even where the defendant shares an apartment with
another, if the items are found in the defendant’s living area and in plain view
throughout the premises.” Jackson at ¶ 14.
{¶24} The evidence presented at trial established that Brown’s social security
card and paperwork in his name were found in a room in the apartment where one of
the guns was recovered; that a photograph on Brown’s social media depicted him
holding three weapons on the balcony of the apartment; that Officer Pitts testified that
one of the weapons in the photograph appeared to be the same weapon found in the
room containing Brown’s personal documents; and that Brown and Orr, in recorded
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OHIO FIRST DISTRICT COURT OF APPEALS
jail calls, discussed the location of the Taurus 1911, the fact that Brown left the
apartment approximately 20 to 30 minutes prior to Orr on the day of Orr’s arrest and
execution of the search warrant, and that Brown was aware that a copy of the search
warrant had been left in the apartment.
{¶25} Viewed in the light most favorable to the prosecution, see Walker, 150
Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, at ¶ 12, this evidence was sufficient
to establish that Brown constructively possessed at least one of the four weapons in
the apartment and that he “knowingly acquired, had, carried, or used” at least one of
the four weapons on or about February 14, 2022. The photograph of Brown with
weapons, one of which the officer believed looked like the Draco Mini found in the
room where Brown’s social security card and paperwork were found, and Brown’s
statements in the recorded jail calls established that he had been staying at the
apartment, had been there on February 14, 2022, and that he had control and
dominion over the premises and was aware of at least one of the weapons in the
apartment. See Jackson, 1st Dist. Hamilton No. C-110570, 2012-Ohio-2727, at ¶ 14.
{¶26} Brown makes much of the fact that the photograph of him holding the
weapons was not dated. He contends that this photograph taken “on some
undetermined date” was the only evidence of possession. We disagree. Brown’s WUD
conviction was based on his constructive possession of the weapons found in the
apartment, not his actual possession of the weapons in the photograph. While the
photograph was not dated, other evidence presented at trial, as set forth above, placed
Brown in the apartment and linked him to the weapons on the date alleged in the
indictment.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} The facts of this case are similar to those in State v. Munn, 6th Dist.
Lucas No. L-08-1363, 2009-Ohio-5879. In Munn, the court upheld a WUD conviction
based on constructive possession where the evidence established that defendant had
been seen at the residence where the weapons at issue were found and either lived or
stored his belongings there, the weapons were discovered in a bedroom among men’s
clothing and shoes, and personal paperwork and a birth certificate for defendant were
found in the bedroom and in the residence. Id. at ¶ 48.
{¶28} Brown additionally argues that the state failed to establish that “what he
was alleged to have possessed” was a firearm pursuant to R.C. 2923.11(B), which
defines a firearm as “any deadly weapon capable of expelling or propelling one or more
projectiles by the action of an explosive or combustible propellant.” This argument is
without merit. Officer Pitts testified that all four of the weapons found in the
apartment were test fired and found to be in working order.
{¶29} We accordingly hold that Brown’s conviction for WUD was supported
by sufficient evidence.
{¶30} Brown’s conviction was also supported by the manifest weight of the
evidence. While the jury heard testimony that the officers never saw Brown at the
apartment while they were conducting surveillance, Brown’s own statements in the
recorded jail calls established that he had been in the apartment both on the day that
the search warrant was executed and sometime subsequent thereto, as evidenced by
his discussion regarding the copy of the search warrant that was left behind. And
although Brown’s DNA was not found on any of the recovered weapons, other evidence
was presented linking Brown to those weapons. This evidence included testimony that
one of the weapons was found in the same room as Brown’s social security card and
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OHIO FIRST DISTRICT COURT OF APPEALS
paperwork, Brown’s discussion of the weapons’ placement in the apartment, and the
photograph depicting Brown holding three weapons on the balcony of the apartment.
{¶31} The jury, as the trier of fact, was in the best position to determine what
weight to give the evidence and to judge the credibility of the witnesses. State v.
Loudermilk, 2017-Ohio-7378, 96 N.E.3d 1037, ¶ 6 (1st Dist.); State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. This was not the rare
case in which the jury lost its way and committed a manifest miscarriage of justice in
convicting Brown. See Powell, 1st Dist. Hamilton No. C-190508, 2020-Ohio-4283, at
¶ 16.
{¶32} Brown’s conviction for WUD was supported by the both the sufficiency
and the weight of the evidence. The first and second assignments of error are
overruled.
III. Conclusion
{¶33} Having overruled Brown’s assignments of error, we accordingly affirm
the trial court’s judgment convicting him of WUD.
Judgment affirmed.
BERGERON, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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