[Cite as State v. Hughes,
2024-Ohio-934.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230239
TRIAL NO. 23CRB-815B
Plaintiff-Appellee, :
vs. : O P I N I O N.
CLEON HUGHES, :
Defendant-Appellant. :
Criminal Appeal from: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry: March 15, 2024
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Joshua Loya, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} In this criminal appeal, defendant-appellant Cleon Hughes appeals his
misdemeanor conviction for having a weapon while intoxicated in violation of
R.C. 2923.15. Hughes raises two assignments of error, arguing that the trial court
erred in admitting the writing on the envelope holding his handgun as substantive
evidence of the offense and that his conviction was based on insufficient evidence and
against the manifest weight of the evidence. For the following reasons, we overrule
the assignments of error and affirm Hughes’s conviction.
Background
{¶2} Cleon Hughes, Anita Lewis, his long-time paramour, and Lewis’s
children were being evicted from their home. While others helped the Lewis family
move, Hughes spent the day visiting family members to find a place to store his
property. At 9:00 p.m. that night, Hughes returned to the house. Jessie Marie
Holtmann is a friend of Lewis, and she and her children were at Lewis’s house to help
with the move. She thought Hughes had returned to the house drunk as he had been
swaying back and forth. Holtmann testified that Hughes began yelling at Lewis, who
yelled back, as the dispute moved to the fenced-in backyard. Hughes yelled, insulted,
and threatened Lewis. She screamed at him to leave her alone.
{¶3} Lewis fled from the fenced-in backyard through the house and left.
Hughes entered the house and started throwing items out on the sidewalk while
swearing. One of the children who lived at the house implored Hughes to stop
throwing things out of the house. Hughes replied by threatening to beat the child and
the whole Lewis family. Hughes also threatened to shoot someone, though it is unclear
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OHIO FIRST DISTRICT COURT OF APPEALS
who. Holtmann fled from the house with her children and the police were called to
the house shortly thereafter.
{¶4} Cincinnati Police Officers Friedman and Shaw arrived at the house.
Officer Friedman smelled a slight odor of alcohol on Hughes’s breath and observed
that Hughes swayed, his hand-eye coordination seemed impaired, and he slurred his
speech. Based on these observations, Officer Friedman later testified that Hughes was
intoxicated. Officer Shaw asked Hughes whether he had anything of concern on him
and Hughes admitted to carrying a holstered handgun. Hughes lifted his jacket to
show the officers his Taurus PT111 G2A 9 mm handgun. Hughes told the officers that
if he wanted to shoot Lewis, he would have done so. The officers then confiscated the
handgun and arrested Hughes for having a firearm while intoxicated as well as
domestic violence and aggravated menacing.
{¶5} After the arrest, Officers Shaw and Friedman completed a firearm
report, a standard police form inventorying the seized handgun, and a query as to
whether Hughes’s handgun was in a national firearm database. When Officer Shaw
went to test-fire the handgun, he asked Officer Friedman to walk him through the test-
fire procedure. Officer Friedman was off duty, so he helped Officer Shaw over the
phone. Officer Friedman guided Officer Shaw on how to complete the test-fire report.
Officer Shaw reported that he was about to fire Hughes’s gun and then Officer
Friedman heard a gunshot over the phone. Officer Shaw reported that the gun
successfully fired. No report detailing the results of the test-firing was presented at
trial. The handgun, a spent test-fire cartridge case, two dozen 9 mm cartridges, and
two magazines were placed in an envelope with the firearm report and the envelope
was marked with identifying information. The only writing indicating a test-fire
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OHIO FIRST DISTRICT COURT OF APPEALS
occurred was on the outside of the envelope holding Hughes’s handgun, which read
“ Test Fired Date: 01-15-23 By: PO B Shaw.”
{¶6} Hughes was tried to the court. At trial, Holtmann and Officer
Friedman testified. Officer Shaw did not testify, so Officer Friedman was the state’s
sole witness to testify to the operability of Hughes’s firearm. After Officer Friedman
described the test-fire he heard over the phone, the state sought to admit the envelope,
the writing on the envelope, Hughes’s handgun, the two magazines, the spent test-fire
cartridge case, and the two dozen 9 mm cartridges altogether as Exhibit 2. The court
admitted Exhibit 2 without objection. The court had the writing on the envelope
photocopied and marked as Exhibit 2 to serve as a representation of the actual
envelope. The actual envelope and its contents were returned to the property room.
{¶7} Hughes took the stand in his own defense. He admitted to carrying a
holstered handgun that night. Hughes testified that he had diabetes and that a test
taken after his arrest reported his blood sugar was at 350. Hughes said his normal
blood-sugar range was 120. He attempted to opine that his high blood sugar would
affect his speech, but he was thwarted by a timely objection. Hughes also testified that
he suffered from several injuries to his leg: a torn ACL, torn PCL, and a broken patella
and he required something to help him stand. No expert medical testimony was
introduced explaining the physiological effect of Hughes’s purported high blood sugar
or leg injuries. The trial court dismissed the charges for domestic violence and
aggravated menacing but found Hughes guilty of having a firearm while intoxicated.
Hughes now appeals.
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OHIO FIRST DISTRICT COURT OF APPEALS
Law and Analysis
I. Admission of the envelope, the writing on it, and its contents.
{¶8} In his first assignment of error, Hughes argues the trial court
committed plain error by admitting into evidence the envelope containing his firearm,
its contents, and the writing on the outside of the envelope altogether as Exhibit 2.
{¶9} Though a trial court’s evidentiary ruling is ordinarily reviewed for an
abuse of discretion, because Hughes did not object to the exhibit at trial, we may
review only for plain error. State v. Bond, 170 Ohio St.3d 316,
2022-Ohio-4150,
212 N.E.3d 880, ¶ 8. To prevail under the plain-error doctrine, Hughes must show
that (1) an error occurred, (2) that the error was obvious, and (3) that there is a
reasonable probability that the error resulted in prejudice, meaning that the error
affected the outcome of the trial. State v. Bailey,
171 Ohio St.3d 486,
2022-Ohio-4407,
218 N.E.3d 858, ¶ 8. The Ohio Supreme Court cautions that the plain-error doctrine
is warranted only under exceptional circumstances to prevent injustice. Id. at ¶ 15.
{¶10} Hughes argues that it is “elementary” that typed and handwritten
information on the outside of an exhibit envelope may only be used for identification
or chain-of-custody purposes and cites as support an unreported Second District
decision, State v. Harmon, 2d Dist. Clark No. 2932, 1993 Ohio App. LEXIS 1268, 6-8
(Mar. 2, 1993). As an unreported court of appeals case decided before May 1, 2002, it
is unclear what precedential authority to afford Harmon. See Rep.Op.R. 3.4.
Nevertheless, even if we gave it precedential weight, it does not support Hughes’s
argument. Harmon states that writing on an exhibit may be used in lieu of direct
testimony to establish the identity of an item with no unique features or to show that
the item has not been tampered with or substituted. Harmon at 7. It does not stand
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OHIO FIRST DISTRICT COURT OF APPEALS
for the proposition that identification or chain of custody are the only permissible
evidentiary uses for such writing.
{¶11} It is not necessary to determine whether the trial court erred by
admitting the writing on the envelope because any potential error would not prejudice
Hughes. In cases where the writing identifying exhibits also serves as probative
evidence of an element of an offense, the writing usually conclusively labels the
exhibit’s contents as prohibited drugs of abuse. See, e.g., State v. Good,
110 Ohio App. 415,
165 N.E.2d 28 (10th Dist.1960). The writing on the outside of the
envelope here details, in relevant part, that the firearm inside was “ Test Fired Date:
01-15-23 By PO B Shaw” alongside other checkboxes. That line reports that a test-fire
was conducted, when, and by whom. It says nothing about the results of the test-firing.
Thus, the writing is not probative of whether the firearm held inside was operable.
Because the writing was not probative of whether the firearm was operable and we
presume that the judge in a bench trial “considered only the relevant, material, and
competent evidence in arriving at its judgment unless it affirmatively appears to the
contrary,” the trial court did not rely on the writing in finding Hughes guilty. See State
v. Beck, 1st Dist. Hamilton No. C-150539,
2016-Ohio-8122, ¶ 28, quoting State v.
White,
15 Ohio St.2d 146, 151,
239 N.E.2d 65 (1968). Thus, Hughes could not be
prejudiced by any potential error in admitting the exhibit.
{¶12} Consequently, we overrule the first assignment of error.
II. Sufficiency and manifest weight of the evidence.
{¶13} In his second assignment of error, Hughes argues that his conviction
was based on insufficient evidence and against the manifest weight of the evidence.
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Specifically, Hughes argues that there was not sufficient evidence as to the elements
of intoxication and the operability of his firearm.
{¶14} A challenge to the sufficiency of the evidence supporting a conviction
requires a court to determine whether the state has met its burden of production at
trial. State v. Thompkins, 78 Ohio St.3d 380, 390,
678 N.E.2d 541 (1997) (Cook, J.,
concurring). When reviewing the sufficiency of the evidence, 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 offense proved
beyond a reasonable doubt. State v. Jenks,
61 Ohio St.3d 259,
574 N.E.2d 492 (1991),
paragraph two of the syllabus. In deciding if the evidence was sufficient, we neither
resolve evidentiary conflicts nor assess the credibility of the witnesses. State v.
Thomas, 1st Dist. Hamilton No. C-120561,
2013-Ohio-5386, ¶ 45. It is a question of
law for the court to determine and a court is not to weigh the evidence unless, after
viewing the evidence, it weighs heavily against conviction.
Id.
{¶15} In contrast, in deciding whether a conviction is against the manifest
weight of the evidence, an appellate court determines whether the state has
appropriately carried its burden of persuasion. Thompkins at 390 (Cook, J.,
concurring). In reviewing the manifest weight of the evidence, an appellate court must
review “the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of the 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.” State v. Bailey, 1st Dist. Hamilton
No. C-140129,
2015-Ohio-2997, ¶ 59, quoting
Thompkins at 387. In reviewing a
manifest-weight challenge, this court sits as a “thirteenth juror.” State v. Curry, 1st
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OHIO FIRST DISTRICT COURT OF APPEALS
Dist. Hamilton No. C-180493, 2020-Ohio-1230, ¶ 17, quoting
Thompkins at 387.
However, a reviewing court will not substitute its judgment for that of the trier of fact
on the issue of witness credibility unless it is patently apparent the trier of fact lost its
way in arriving at its verdict. State v. Porter, 1st Dist. Hamilton No. C-200459,
2021-Ohio-3232, ¶ 25.
A. Intoxication
{¶16} R.C. 2923.15 provides, in relevant part, that “[n]o person, while under
the influence of alcohol or any drug of abuse, shall carry or use any firearm or
dangerous ordnance.” “Under the influence” has been defined as:
the condition in which a person finds himself after having consumed
some intoxicating beverage, whether mild or potent, and in such
quantity, whether small or great, that its effect on the person adversely
affects his actions, reactions, conduct, movements or mental processes
or impairs his reactions to an appreciable degree, under the
circumstances then existing so as to deprive him of that clearness of the
intellect and control of himself which he would otherwise possess.
State v. Maynard, 1st Dist. Hamilton No. C-230160, 2023-Ohio-4619, ¶ 38, quoting
State v. Eldridge, 12th Dist. Warren No. CA2015-02-013,
2015-Ohio-3524, ¶ 7.
Evidence that the accused admitted to consuming alcohol and exhibited physical
indicia of intoxication such as glassy or bloodshot eyes, slurred speech, staggering,
swaying, and the odor of alcohol on the accused’s breath or person are sufficient to
prove intoxication. Id. at ¶ 39-40.
{¶17} No field-sobriety, blood, or urine tests were conducted on Hughes. The
evidence of intoxication presented at trial was based upon the witnesses’ testimony.
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OHIO FIRST DISTRICT COURT OF APPEALS
Holtmann and Officer Friedman both testified that they believed Hughes was
intoxicated based upon the physical indicia of alcohol intoxication they observed.
Holtmann observed that Hughes was “swaying back and forth a lot” that night. Officer
Friedman observed the slight odor of alcohol on Hughes’s breath, he was “kind of
swaying,” that “his hand-eye coordination was maybe impaired or slightly altered,” he
had trouble forming sentences, and he slurred his speech. The two witnesses’
opinions, together with the physical indica of intoxication, when viewed in the light
most favorable to the prosecution, are sufficient to show that Hughes was under the
influence of alcohol that night.
{¶18} Hughes argues that that evidence is not credible because Officer
Friedman’s and Holtmann’s observations of Hughes’s intoxication do not align. We
note that the trier of fact is in the best position to judge the credibility of the witnesses.
See State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the
syllabus; State v. Jackson, 1st Dist. Hamilton No. C-210634,
2023-Ohio-785, ¶ 17.
{¶19} Holtmann opined that Hughes was drunk that night and observed that
Hughes was “swaying back and forth a lot.” Officer Friedman opined that Hughes was
“most definitely impaired” and observed the slight odor of alcohol on Hughes’s breath,
he was “kind of swaying,” that “his hand-eye coordination was maybe impaired or
slightly altered,” he had trouble forming sentences, and he slurred his speech. These
observations were not inconsistent with each other as both witnesses observed that
Hughes swayed and both witnesses independently arrived at their opinions. But
Holtmann did not echo Officer Friedman’s observation that Hughes’s breath smelled
of alcohol or that he was having trouble forming sentences and slurring his speech.
However, Officer Friedman is a trained police officer with six years of experience and
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OHIO FIRST DISTRICT COURT OF APPEALS
often interacts with intoxicated persons. It is not incredible that a trained and
experienced police officer would be more observant of physical indicia of intoxication
than the everyday citizen. The trial court did not clearly lose its way in believing
Officer Friedman’s and Holtmann’s independent opinions that Hughes was under the
influence of alcohol. See Maynard, 1st Dist. Hamilton No. C-230160, 2023-Ohio-
4619, at ¶ 39-40 (conviction for having a weapon while intoxicated not against the
manifest weight of the evidence where multiple police officers opined the defendant
was intoxicated and displayed multiple physical indica of intoxication).
{¶20} Hughes also argues that he swayed when standing because of his
diabetes and his blood sugar being too high and that he showed poor balance because
of his leg injuries. However, Hughes offered no medical explanation at trial as to
whether those conditions would cause the behaviors observed by Officer Friedman
and Holtmann as indicia of intoxication. When conflicting explanations are presented
at trial, a conviction is not against the manifest weight of the evidence simply because
the trier of fact accepts one explanation over another. State v. McDaniel,
2021-Ohio-724,
168 N.E.3d 910, ¶ 25 (1st Dist.), quoting State v. Robinson, 12th Dist.
Butler No. CA2018-08-163,
2019-Ohio-3144, ¶ 29.
B. Operability of the firearm
{¶21} Turning to the element of operability, a “firearm” is defined to mean
“any deadly weapon capable of expelling or propelling one or more projectiles by the
action of an explosive or combustible propellant” and the definition includes “an
unloaded firearm, and any firearm that is inoperable but can be readily rendered
operable.” R.C. 2923.11(B)(1). Courts have interpreted the statutory definition of
firearm to add an additional essential element of operability to the offense of having a
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OHIO FIRST DISTRICT COURT OF APPEALS
firearm while intoxicated. Thus, the firearm’s operability must be proven beyond a
reasonable doubt. See State v. Weber, 12th Dist. Clermont No. CA2018-06-040,
2019-Ohio-916, ¶ 12.
{¶22} Here, the state presented sufficient evidence that Hughes’s firearm was
operable. Officer Shaw test-fired the firearm the day after arresting Hughes. The state
did not offer a report detailing the test-firing of the firearm. Nor did Officer Shaw
testify in court about the test-firing he conducted. Rather, Officer Friedman testified
about the test-firing as he walked Officer Shaw through the process over the phone. A
test-firing occurred as the front of the envelope was marked “test fired,” Officer
Friedman testified to walking Officer Shaw through the test-fire process which ended
in an audible gunshot, and Officer Friedman identified Hughes’s firearm and a spent
test-fire cartridge case in the envelope. However, as discussed above, the envelope
does not indicate whether the test-firing was successful. The only evidence that Officer
Shaw’s test-fire was successful was Officer Freidman’s unobjected-to testimony that
Officer Shaw told him over the phone that the gun fired. When viewed in the light
most favorable to the prosecution, a rational finder of fact could reasonably infer from
testimony about the test-firing that Hughes’s firearm was operable.
{¶23} Additionally, there was circumstantial evidence that Hughes’s firearm
was operable. Proof of operability “is not dependent on an empirical analysis of the
gun.” State v. Pope, 1st Dist. Hamilton No. C-180587, 2019-Ohio-3599, ¶ 8, quoting
State v. Murphy,
49 Ohio St.3d 206, 209,
551 N.E.2d 932 (1990). When Officer
Friedman confiscated Hughes’s firearm, it had a loaded magazine and a round loaded
in the chamber. Officer Friedman opined that it was operable at that time. A firearm
that was found loaded, in conjunction with a trained and experienced police officer’s
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OHIO FIRST DISTRICT COURT OF APPEALS
opinion that the firearm is operable, can be sufficient evidence of operability. Pope at
¶ 12; State v. Holt, 3d Dist. Marion No. 9-09-39, 2010-Ohio-2298, ¶ 67.
{¶24} When determining whether a firearm is operable, courts may rely upon
circumstantial evidence including the representations and actions of the individual
exercising control over the firearm. R.C. 2923.11(B)(2); Murphy at paragraph one of
the syllabus. Hughes’s own statements to the police officers also implied that his
firearm was operable. When asked whether he had “anything of concern” to the police
officers, Hughes answered that he had a gun carried in a holster. Moreover, Holtmann
testified that Hughes threatened to shoot someone that night. When the officers asked
Hughes about those threats, he replied that had he wanted to shoot Lewis, he would
have done so. Hughes’s representation that he could have shot someone, had he
wanted to, made on the night he carried a loaded firearm implies that his firearm was
operable, particularly when we view those statements in the light most favorable to the
prosecution. See Murphy at 208-209 (sufficient proof of operability where defendant
announced a robbery, produced a firearm, and said he would kill the clerk if he did not
give him the money); see also Thompkins,
78 Ohio St.3d at 383,
678 N.E.2d 541, citing
id. (sufficient proof of operability where defendant made implicit threats while holding
a firearm). Hughes’s own statements, the circumstances in which he made those
statements, and a trained officer’s opinion that the seized handgun was loaded and
operable are sufficient to prove that Hughes’s handgun was operable that night. See
Pope at ¶ 12 (sufficient proof of operability where defendant told officers he had a
“gun,” the officer found it with a fully loaded magazine and a round in the chamber,
and defendant later testified it was operable).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶25} Nor did the trier of fact lose its way in concluding that Hughes’s firearm
was operable. The testimony concerning the test-firing does not contradict the other
circumstantial evidence about operability. Even if we did not consider the testimony
concerning the test-firing, the circumstantial evidence that Hughes’s firearm was
operable that night was uncontested. The trier of fact did not patently lose its way in
determining that the firearm was operable based on the facts that Officer Friedman
confiscated a loaded firearm, he opined that the firearm was operable when it was
seized, Hughes told the officers he had a holstered firearm, and he represented to the
officers that he was able, but disinclined, to shoot his paramour. See State v. Jeffers,
143 Ohio App.3d 91, 95,
757 N.E.2d 417 (1st Dist.2001) (conviction of a firearm
specification not contrary to the manifest weight of the evidence where defendant
threatened to shoot the victim and indicated he had a concealed firearm, though it was
never recovered).
{¶26} In sum, the evidence presented, when viewed in the light most
favorable to the state, was sufficient to prove that Hughes was under the influence of
alcohol that night and that the firearm he was carrying was operable. The trial court
did not lose its way and create a manifest miscarriage of justice in convicting Hughes.
This is not an exceptional case where the evidence weighs heavily against conviction.
Consequently, we overrule the second assignment of error.
Conclusion
{¶27} Having overruled the two assignments of error, we affirm the judgment
of the municipal court.
Judgment affirmed.
B ERGERON , P.J., and C ROUSE , J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
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