[Cite as State v. Camacho,
2021-Ohio-3975.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-054
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
ELIAS CAMACHO,
Trial Court No. 2020 CR 000459
Defendant-Appellant.
OPINION
Decided: November 8, 2021
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor,
Lake County Administrative Building 105 Main Street, P.O. Box 490, Painesville, Ohio
44077 (for Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Jamie R. Eck, Assistant Public
Defender, 129 East Erie Street, Painesville, Ohio 44077 (for Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Elias Camacho, appeals his convictions of having weapons while
under disability, in violation of R.C. 2929.13(A)(2), and tampering with evidence, in
violation of RC 2921.12(A)(1).
{¶2} For the following reasons, we affirm the judgment of the Lake County Court
of Common Pleas.
{¶3} On April 21, 2020, at 7:30 a.m., officers responded to a dispatch call to
investigate a gunshot at an apartment building on40 East South Street. On the way,
police saw Appellant walking down the street wearing only a pair of boxer shorts and
noticed that he was bleeding heavily from a laceration on his left hip. The police asked
Appellant how he was injured, and he said that he was mugged while leaving his
residence at 40 East South Street.
{¶4} While Appellant was at the hospital receiving treatment for his injuries, the
police arrived at Appellant’s residence to investigate the gunshot. The police saw a bullet
mark and bullet fragments near the front door. Appellant’s girlfriend told the police that
she and Appellant had an altercation, that she stabbed him, that she was also injured,
and that a gun had been shot.
{¶5} At the hospital, the police asked Appellant if he had a gun and whether it
was in his vehicle. Appellant denied having or knowing of a gun. Appellant was arrested.
While in jail, Appellant called a friend asking her to retrieve personal items from his
vehicle, stating: “I need you to go in the truck, right under the seat, it’s something I need
you to grab. If they go and if they get a warrant for the truck, it’s over with me. I’m not
coming home, alright? Do you understand that?” The friend refused the request to
remove the items from the vehicle. Appellant asked again the next day, stating:
“Something gotta shake. I can’t – I can’t take out for this gun.” The friend then suggested
Appellant tell the police that the gun belonged to his girlfriend, to which Appellant replied,
“It’s her gun, but I’m not saying it’s nobody’s gun.”
{¶6} The police obtained a search warrant for Appellant’s vehicle and apartment
and found the gun in Appellant’s vehicle under the passenger seat. The gun had two
traces of blood on it, with one trace matching Appellant. Appellant’s girlfriend admitted to
owning the gun but did not admit to using it during the altercation.
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{¶7} Appellant was convicted at trial of 1) having weapons while under disability,
in violation of R.C. 2923.13(A)(2); and 2) tampering with evidence, in violation of RC
2921.12(A)(1), with a firearm specification.
{¶8} At trial, witnesses testified that shortly after hearing a gunshot, they saw a
shirtless man matching Appellant’s description run out of the apartment and put
something in his vehicle.
{¶9} ASSIGNMENT OF ERROR 1: THE TRIAL COURT ERRED TO THE
PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT DENIED HIS MOTION FOR
ACQUITTAL UNDER CRIM. R. 29(A).
{¶10} ASSIGNMENT OF ERROR 2: THE TRIAL COURT TO THE PREJUDICE
OF THE DEFENDANT-APPELLANT WHEN IT RETURNED A VERDICT OF GUILTY
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶11} “The court on motion of a defendant or on its own motion, after the evidence
on either side is closed, shall order the entry of a judgment of acquittal of one or more
offenses charged in the indictment, information, or complaint, if the evidence is insufficient
to sustain a conviction of such offense or offenses.” Crim.R. 29. Under Crim.R. 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.” State v. Bridgeman, 55 Ohio
St.2d 261,
381 N.E.2d 261 (1978), at syllabus. “Thus, when an appellant makes
a Crim.R. 29(A) motion, he or she is challenging the sufficiency of the evidence
introduced by the state.” State v. Patrick, 11th Dist. Trumbull Nos. 2003-T-0166, 2003-
T-0167,
2004-Ohio-6688, ¶ 18.
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{¶12} “‘Sufficiency’ is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient
to support the jury verdict as a matter of law.” Black's Law Dictionary (6 Ed.1990) 1433.
See, also, Crim.R. 29(A).” State v. Thompkins, 78 Ohio St. 3d 380, 386,
678 N.E.2d 541
(1997). The appellate court’s standard of review for sufficiency of evidence is to
determine, after viewing the evidence in a light most favorable to the prosecution, whether
a rational trier of fact could find the essential elements of the crime proven beyond a
reasonable doubt. State v. Jenks,
61 Ohio St. 3d 259,
574 N.E.2d 492 (1991), paragraph
two of the syllabus.
{¶13} “Weight of the evidence concerns the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.
It indicates clearly to the jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they shall find the greater amount
of credible evidence sustains the issue which is to be established before them. Weight is
not a question of mathematics but depends on its effect in inducing belief.” Id. at 387.
Whereas sufficiency relates to the evidence’s adequacy, weight of the evidence relates
the evidence’s persuasiveness.
Id. The reviewing court “weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed, and a new trial ordered. The
discretionary power to grant a new trial should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction.” State v. Martin,
20 Ohio
App. 3d 172, 175,
485 N.E.2d 717 (1st Dist. 1983).
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{¶14} Since circumstantial evidence and direct evidence possess the same
probative value, a jury may consider circumstantial evidence. Jenks, at 272.
{¶15} Appellant argues, first, that the trial court erred when it denied his motion
for acquittal under Crim.R. 29 because there was insufficient evidence to convict him of
having weapons while under disability, in violation of R.C. 2923.13(A)(2).
{¶16} R.C. 2923.13(A)(2) provides:
Unless 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 the person is under
indictment for or has been convicted of any felony offense of
violence or 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.
{¶17} Appellant contends he did not acquire, have, carry, or use the firearm as
required under R.C. 2923.13(A)(2) because there was insufficient evidence that he was
seen with a firearm or that he owned a firearm. Appellant’s neighbors testified that after
hearing a gunshot, they saw him run to his vehicle and put something on the passenger
side where the gun was found with his blood on it. The jail call records are additional
evidence that Appellant “had,” “carried,” “used,” or “acquired” the firearm. In the jail call
records, Appellant explicitly tells his friend that the gun needs to be removed from his
vehicle before police obtained a search warrant, stating: “If they go and if they get a
warrant for the truck, it’s over with me. I’m not coming home, alright? Do you understand
that? Something gotta shake. I can’t – I can’t take out for this gun.” This evidence
demonstrates that Appellant knew that 1) he was not supposed to acquire, have, carry,
or use a firearm under disability, and 2) if the gun was found in his vehicle, the police
would know that he did, in fact, acquire, have, carry, or use a firearm. This is sufficient
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evidence for a rational trier of fact to find that Appellant met the elements of having
weapons under disability. It is irrelevant that Appellant did not own the gun, as R.C.
2923.13(A)(2) prohibits having, carrying, or using a firearm.
{¶18} Appellant’s first assignment of error is without merit.
{¶19} Appellant also argues that his conviction of having weapons while under
disability is against the manifest weight of the evidence.
{¶20} Here, the evidence shows a man, identified as Appellant, seen putting
something in the passenger side of Appellant’s vehicle where the gun was found
containing traces of Appellant’s blood. Though the evidence is circumstantial, the jury’s
duty is to weigh all evidence, direct and circumstantial, which it did. Jenks. at 272, 502.
Weighing the evidence and all reasonable inferences, we cannot find that the jury clearly
lost its way or created such a manifest miscarriage of justice that would warrant reversing
Appellant’s conviction.
{¶21} Appellant’s second assignment of error as to his conviction of having
weapons under disability is without merit.
{¶22} Appellant next argues that the trial court erred when it denied his motion for
acquittal under Crim.R. 29 because there was insufficient evidence to convict him of
tampering with evidence under R.C. 2921.12(A)(1).
{¶23} R.C. 2921.12(A)(1) provides: “no person, knowing that an official
proceeding or investigation is in progress, or is about to be or likely to be instituted, shall
do any of the following: (1) alter, destroy, conceal, or remove any record, document, or
thing, with purpose to impair its value or availability as evidence in such proceeding or
investigation.” “Thus, to prove tampering with evidence, the state had to prove the
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defendant (1) had knowledge that an official proceeding or investigation was in progress,
or likely to be instituted; and (2) altered, destroyed, concealed, or removed the potential
evidence; (3) for the purpose of impairing the potential evidence’s availability or value in
such proceeding or investigation.” State v. Straley, 139 Ohio St.3d 339,
2014-Ohio-2139,
11 N.E.3d 1175, ¶ 11.
{¶24} “A person acts knowingly, regardless of purpose, when the person is aware
that the person's conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.” R.C. 2901.22(B). Under R.C. 2921.12(A)(1), the
court does not impute constructive knowledge on the defendant. State v. Barry, 145 Ohio
St. 3d 354,
2015-Ohio-5449,
49 N.E.3d 1248, ¶ 24. Rather, the defendant must be
subjectively aware that his conduct will probably cause a certain result or that
circumstances probably exist.
Id.
{¶25} In State v. Shaw, 2018-Ohio-403, 8th Dist. Cuyahoga
105 N.E.3d 569, the
court held that circumstantial evidence may demonstrate that a defendant subjectively
knew, based on his conduct, an investigation was likely to be instituted. In Shaw, the
defendant was convicted for tampering with evidence after shooting a gun at two
individuals in a residential neighborhood in broad daylight. Id. at ¶ 7. When the police
arrived, they asked the defendant if he had a gun or shot a gun and he denied both
accusations. The police later found the gun behind the wall in the defendant’s basement.
Id. at ¶ 10. At issue was whether the defendant hid the gun knowing an investigation or
proceeding was likely to be instituted. Id. at ¶ 18. The court held that it is reasonable to
infer the defendant subjectively knew an investigation would be likely when he shot a gun
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in a residential neighborhood in broad daylight and then lied about it. Id. at ¶ 23. Thus,
the court held there was sufficient evidence to convict the defendant of tampering of
evidence. Id. at ¶ 29.
{¶26} Similar to the facts in Shaw, appellant was in an altercation in which he was
stabbed, a gun was fired in the morning in a residential apartment complex, and he denied
having or using a gun even though one was found in his vehicle with his blood on it.
Gunshots in a residential area during the day is sufficient circumstantial evidence to prove
that Appellant subjectively knew an investigation would likely be instituted. Id. at ¶ 18.
Thus, the first element of tampering with evidence is sufficient.
{¶27} Appellant argues he did not remove the gun, as there was no evidence
showing he ever had the gun. This is incorrect. The state’s evidence was: 1) the witness
testimony saying they saw Appellant put something in the passenger side of his vehicle;
2) the gun with traces of Appellant’s blood on it; and 3) the jail call records in which
Appellant explicitly asked a friend to remove items from his vehicle because “I can’t take
out for this gun.” This is sufficient for a jury to find Appellant had the gun and removed it
to the truck, satisfying element two of tampering with evidence.
{¶28} Appellant also contends there was insufficient evidence because it is
reasonable to believe he moved the gun to his vehicle to prevent his girlfriend from
harming him, not to impair its availability during an investigation. Yet, a court shall not
grant an entry of judgment of acquittal if the evidence is such that reasonable minds can
reach different conclusions. Bridgeman, 55 Ohio St.3d 261, at syllabus. The evidence
shows a man matching Appellant’s description placing something in Appellant’s vehicle
shortly after the gun was shot. The evidence also shows that Appellant later attempted
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to have a friend move the gun from his vehicle before the police obtained a search
warrant. This is sufficient evidence for a jury to find that Appellant’s purpose for moving
the gun was to impair its availability during an investigation, not to prevent his girlfriend
from harming him.
{¶29} A rational trier of fact could find there was sufficient evidence to support all
elements of tampering with evidence beyond a reasonable doubt. Appellant’s first
assignment of error as to his conviction of tampering with evidence is without merit.
{¶30} Appellant lastly argues that his conviction of tampering with evidence is
against the manifest weight of the evidence. The state’s evidence is that shortly after
hearing a gunshot, Appellant was seen placing something in his vehicle where the gun
was found with his blood on it. Further evidence is the phone call asking his friend to
move the gun from the vehicle before police obtained a search warrant. Weighing the
credibility of the testimony and all inferences from the evidence, we cannot find that the
jury clearly lost its way or created such a manifest miscarriage of justice that would
warrant reversing Appellant’s conviction.
{¶31} Appellant’s second assignment of error is without merit.
{¶32} The judgment of the Lake County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
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