[Cite as State v. Cross,
2019-Ohio-3133.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 18CA011426
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RODERICK B. CROSS, JR. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 18CR097834
DECISION AND JOURNAL ENTRY
Dated: August 5, 2019
CALLAHAN, Presiding Judge.
{¶1} Appellant, Roderick Cross, appeals his convictions by the Lorain County Court of
Common Pleas. This Court affirms in part and reverses in part.
I.
{¶2} On January 12, 2018, the U.S. Marshals Violent Fugitive Task Force knocked on
the door of a home in Elyria, Ohio in search of Mr. Cross because they had credible information
leading them to believe that he was staying with the owner of the home. The owner, S.G.,
acknowledged that Mr. Cross was present and allowed the officers to enter. Mr. Cross walked
into an open area near the front of the house and identified himself as “Brandon Keith.” Officers
familiar with Mr. Cross suspected that this was a false name, but Mr. Cross was adamant about
his identity.
{¶3} As officers conducted a protective sweep of the residence, Mr. Cross shouted that
they would find a gun on a nightstand in the back bedroom. Meanwhile, Mr. Cross continued to
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maintain that he was Brandon Keith. The officers found a loaded handgun in the location that
Mr. Cross identified. Nearby, they also found a laser sight and identification belonging to
Brandon Keith. According to the officers at the scene, Mr. Cross ultimately admitted his true
identity and acknowledged that he owned the handgun.
{¶4} Mr. Cross was charged with having a weapon while under disability in violation
of R.C. 2923.13(A)(3), identity fraud in violation of R.C. 2913.49(B)(2), and possessing criminal
tools in violation of R.C. 2923.24(A). Mr. Cross waived his right to a trial by jury, and the trial
court found him guilty of each charge. The trial court sentenced Mr. Cross to prison terms of
twelve months on each charge, and Mr. Cross filed this appeal.
II.
ASSIGNMENT OF ERROR NO. 1
THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE
EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE
CONSTITUTION OF THE STATE OF OHIO.
{¶5} In his first assignment of error, Mr. Cross argues that each of his convictions is
supported by insufficient evidence. This court agrees in part.
{¶6} “Whether a conviction is supported by sufficient evidence is a question of law
that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009–Ohio–
6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is
whether the prosecution has met its burden of production by presenting sufficient evidence to
sustain a conviction.
Thompkins at 390 (Cook, J., concurring). In reviewing the evidence, we do
not evaluate credibility, and we make all reasonable inferences in favor of the State. State v.
Jenks,
61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to
3
reasonably conclude that the essential elements of the crime were proven beyond a reasonable
doubt. Id.
{¶7} R.C. 2923.13(A)(3), which prohibits having a weapon while under disability,
provides that “[u]nless relieved from disability under operation of law or legal process, no person
shall knowingly … have … any firearm or dangerous ordance, if … [t]he person …
has been convicted of any felony offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse[.]” To “have” a weapon under
disability requires either actual or constructive possession. State v. Hardy, 60 Ohio App.2d 325,
327 (8th Dist.1978). In this context, “[c]onstructive possession has been defined as ‘knowingly
[exercising] dominion and control over an object, even though that object may not be within [the
defendant’s] immediate physical possession.’” State v. Blue, 9th Dist. Lorain No. 10CA009765,
2011-Ohio-511, ¶ 17, quoting State v. Hankerson,
70 Ohio St.2d 87 (1982), syllabus. Ownership
does not need to be proven, and constructive possession may be established by circumstantial
evidence. Blue at ¶ 17.
{¶8} Deputy Stephen Fuller, a member of the U.S. Marshals Violent Fugitive Task
force, testified that during a protective sweep of S.G.’s residence, Mr. Cross informed officers
that they would find a firearm on a nightstand in the back bedroom. Officers located the firearm
exactly where Mr. Cross told them they would find it and, according to Lieutenant James Walsh
of the Elyria Police Department, Mr. Cross admitted that he owned the gun. The parties
stipulated that Mr. Cross had prior convictions that placed him under a disability for purposes of
R.C. 2923.13(A)(3). Making all reasonable inferences in favor of the State, these facts were
sufficient for a trier of fact to reasonably conclude that Mr. Cross possessed a weapon while
under disability beyond a reasonable doubt.
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{¶9} Possessing criminal tools is prohibited by R.C. 2923.24(A), which provides that
“[n]o person shall possess or have under the person’s control any substance, device, instrument,
or article, with purpose to use it criminally.” When such a device, instrument, or article is
possessed “under circumstances indicating the item is intended for criminal use[,]” prima facie
evidence of criminal purpose is present. R.C. 2923.24(B)(3). An “article” is “a particular item
or thing[.]” Black’s Law Dictionary 133 (10th Ed.2014). Possession may be actual or
constructive, and “[c]onstructive possession is demonstrated if the items are under a defendant’s
dominion or control.” State v. Rucker, 9th Dist. Summit No. 25081, 2010-Ohio-3005, ¶ 30,
citing State v. Wolery,
46 Ohio St.2d 316, 329 (1976) and State v. McShan,
77 Ohio App.3d 781,
783 (8th Dist.1991).
{¶10} The circumstances surrounding the discovery of Brandon Keith’s identification
demonstrate constructive possession on the part of Mr. Cross. While the police swept the
residence, Mr. Cross steadfastly maintained that he was Brandon Keith. Deputy Fuller testified
that the identification corresponding to that name was found in the back bedroom in close
proximity to the firearm that was also recovered. Mr. Cross himself drew the officers’ attention
to that location by directing them to the firearm that they would find there. Resolving the
inferences from this evidence in favor of the State, the trier of fact could reasonably conclude
that Mr. Cross possessed Brandon Keith’s identification for the criminal use of evading arrest by
concealing his own identity. This evidence was sufficient for a trier of fact to reasonably
conclude that Mr. Cross was guilty of possessing criminal tools beyond a reasonable doubt.
{¶11} With respect to Mr. Cross’s conviction for identity fraud, however, we reach a
different conclusion. Identity fraud is prohibited by R.C. 2913.49, which provides that “[n[o
person, without the express or implied consent of the other person, shall use, obtain, or possess
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any personal identifying information of another person with intent to … [r]epresent the other
person’s identifying information as the person’s own personal identifying information.”
(Emphasis added.) R.C. 2913.49(B)(2). “Personal identifying information” includes an
individual’s driver’s license or state identification card. R.C. 2913.49(A). Lack of consent is an
element of the offense of identity fraud that the State must prove beyond a reasonable doubt.
See, e.g., State v. Gordon, 9th Dist. Summit No. 28331, 2017-Ohio-7147, ¶ 26; State v. Agostini,
12th Dist. Warren Nos. CA2016–02–013, CA2016–02–014,
2017-Ohio-4042, ¶ 48; State v.
Jones, 5th Dist. Stark No. 2010CA00214,
2011-Ohio-4440, ¶ 40; State v. Conley, 5th Dist.
Richland No. 2009-CA-19,
2009-Ohio-2903, ¶ 42.
{¶12} The State did not produce any evidence from which the conclusion could be
drawn that Mr. Cross possessed Brandon Keith’s identification without his consent. In fact,
evidence related to Brandon Keith in any respect was very limited: Deputy Fuller testified that he
did not know whether Brandon Keith was related to Mr. Cross in any way and that he had no
dealings with Brandon Keith in the past. Lieutenant Walsh testified that Mr. Cross is similar in
appearance to the photograph of Brandon Keith. He also explained that he received information
that Brandon Keith might be related to Mr. Cross, but could not confirm it, and that he attempted
to locate Brandon Keith to no avail. Even drawing all possible inferences from this evidence in
favor of the State, a trier of fact could not reasonably conclude that the State proved that Mr.
Cross possessed the identification without consent from these statements alone.
{¶13} The State maintains that this Court should nonetheless conclude that there is
sufficient evidence to demonstrate identity fraud because Mr. Cross did not possess the
identification for a lawful reason under R.C. 2913.49(F). See State v. Williams, 3d Dist.
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Auglaize No. 2-13-31, 2014-Ohio-4425, ¶ 14. This position, however, conflates the elements of
the offense with an affirmative defense.
{¶14} R.C. 2913.49(F) sets forth three affirmative defenses to a charge of identity fraud
arising under R.C. 2913.49(B). One such affirmative defense is that “[t]he personal identifying
information was obtained, possessed, used, created, or permitted to be used for a lawful
purpose[.]” R.C. 2913.49(F)(2)(b). While lack of consent is an element of the offense that must
be proved by the State beyond a reasonable doubt, “[t]he burden of going forward with the
evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence,
for an affirmative defense, is upon the accused.” R.C. 2901.05(A). A defendant who
successfully proved the affirmative defense available under R.C. 2913.49(F)(2) would
demonstrate that even though the elements set forth in R.C. 2913.49(B) were proved—including
lack of consent—his conduct was justified by proof that he acted with a lawful purpose. See
generally State v. Poole, 33 Ohio St.2d 18, 19 (1973).1
{¶15} This analysis is separate from proof of the elements of the offense. “The Due
Process Clause of the Fourteenth Amendment to the United States Constitution protects the
defendant from conviction except upon proof beyond a reasonable doubt of ‘all of the elements
included in the definition of the offense of which the defendant is charged.’” State v. Ireland,
155 Ohio St.3d 287,
2018-Ohio-4494, ¶ 38, quoting Patterson v. New York,
432 U.S. 197, 210
(1977). Consequently, a sufficiency analysis must be applied with reference to the substantive
elements of an offense without regard for any affirmative defenses. See State v. Hancock,
108
Ohio St.3d 57,
2006-Ohio-160, ¶ 37-38, citing Jackson v. Virginia¸
443 U.S. 307, 315 (1979). A
1
It is also worth noting that acting with “a lawful purpose” is not synonymous with
“consent.” One could possess another’s identifying information with consent, but for an
unlawful purpose.
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defendant’s choice not to assert and prove an affirmative defense does not constitute proof of an
element of the offense by the State.
{¶16} The State did not produce evidence sufficient for a reasonable trier of fact to
conclude, beyond a reasonable doubt, that Mr. Cross possessed Brandon Keith’s identification
without his consent. With respect to Mr. Cross’s conviction for identity fraud, therefore, his first
assignment of error is sustained. With respect to his convictions for having a weapon while under
disability and possessing criminal tools, his first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
14TH AMENDMENT TO THE U.S. CONSTITUTION AND OF THE OHIO
CONSTITUTION.
{¶17} Mr. Cross’s second assignment of error argues that his convictions are against the
manifest weight of the evidence. This Court disagrees.
{¶18} When considering whether a conviction is against the manifest weight of the
evidence, this Court must:
review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine whether, in resolving conflicts
in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction.
Id., citing
State v. Martin,
20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶19} With respect to his conviction for having a weapon under disability, Mr. Cross
maintains that both he and S.G. had motivations to lie during their interaction with law
enforcement and, consequently, that testimony regarding any statements that they made at the
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time was unreliable. Deputy Fuller and Lieutenant Walsh were the only witnesses who testified
at trial. Neither of them explained the relationship, if any, between Mr. Cross and S.G., so it is
only apparent from the record that Mr. Cross was located at S.G.’s home. Lieutenant Walsh
testified that S.G. and Mr. Cross were the only people in the house at the time of the arrest. He
acknowledged that Mr. Cross had a criminal record and had just misrepresented his own identity,
but he denied any knowledge of a reason that Mr. Cross would have to lie about ownership of the
firearm found in the bedroom. The credibility afforded this testimony is primarily a matter
entrusted to the finder of fact, and we cannot conclude that Mr. Cross’s conviction for having a
weapon under disability is against the manifest weight of the evidence. See State v. Rivera, 9th
Dist. Lorain No. 18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit
No. 25161,
2010-Ohio-3296, ¶ 15.
{¶20} With respect to his conviction for possessing criminal tools, Mr. Cross appears to
argue that his conviction is against the manifest weight of the evidence because it relies on
circumstantial evidence that Mr. Cross intended to use Brandon Keith’s identification for a
criminal purpose. It is well-established, however, that “[c]ircumstantial evidence and direct
evidence inherently possess the same probative value.” State v. Treesh, 90 Ohio St.3d 460, 485
(2001), citing Jenks,
61 Ohio St.3d 259, at paragraph one of the syllabus.
{¶21} Mr. Cross’s convictions for having a weapon under disability and possessing
criminal tools are not against the manifest weight of the evidence. His second assignment of
error is overruled.
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III.
{¶22} Mr. Cross’s first assignment of error is sustained in part and overruled in part.
His second assignment of error is overruled. The judgment of the Lorain County Court of
Common Pleas is affirmed in part and reversed in part, and this matter is remanded to the trial
court for the purpose of vacating Mr. Cross’s conviction for identity fraud.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
LYNNE S. CALLAHAN
FOR THE COURT
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HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
GIOVANNA BREMKE, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and DANIELLELA BEARDEN, Assistant
Prosecuting Attorney, for Appellee.
