In re J.F.

2024 Ohio 1950

• Court: Ohio Court of Appeals
• Decided: May 22, 2024
• Docket: C-230464, C-230465, C-230466
• Status: Published

Opinion

[Cite as In re J.F., 2024-Ohio-1950.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: J.F. : APPEAL NOS. C-230464 C-230465 : C-230466 TRIAL NOS. 22-1831Z : T-22-693Z T-22-692Z

: O P I N I O N.

Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed in C-230464; Appeals Dismissed in C-230465 and C-230466

Date of Judgment Entry on Appeal: May 22, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, Margaret Kane, Assistant Public Defender, and Jessica Moss, Assistant Public Defender, for Defendant- Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Judge.

{¶1} On the evening of May 22, 2022, two officers initiated a traffic stop of

defendant-appellee J.F. for a suspected window-tint violation. The body-worn camera

footage shows that the second officer called in the traffic stop over the radio at 11:50

p.m. The officers exited from their vehicle and approached the vehicle from behind,

with the driver’s window appearing to already be rolled down. As the second officer

approached the vehicle, he described the call over the radio and said, “Unknown

occupants, heavy window tint.” As the first officer got to the trunk of the vehicle on

the driver’s side, he said to J.F., “Can you roll down any of the…all of these windows

for me?” J.F. replied, “Yes, sir,” and immediately rolled down all the windows. The

first officer then shined the flashlight in the back left window and into the interior of

the back seat as he approached. The second officer shined his flashlight through the

back right window and said over the radio, “Okay, just [inaudible] one occupant.” Both

officers then moved on to shine the flashlight on J.F., but the first officer immediately

returned the flashlight to the back seat upon noticing a firearm. The first officer then

told the second officer, “Gun recovery…or gun.”

{¶2} J.F. was ultimately adjudicated for improper handling of a firearm in a

motor vehicle in violation of R.C. 2923.16(B), a felony of the fourth degree if

committed by an adult. J.F. appeals from this judgment.1

{¶3} The first issue we are tasked with determining in this appeal is whether

the officers violated J.F.’s right to be free from unreasonable searches and seizures by

asking him to roll down all the windows to determine whether other occupants were

1 We note that, in the consolidated actions, J.F. filed notices of appeal from his adjudications related to two other complaints that were filed against him arising from the traffic stop. However, no assignments of error were ultimately presented to this court regarding those adjudications. Accordingly, we dismiss the appeals numbered C-230465 and C-230466, relating to the cases numbered T-22-693Z and T-22-692Z.

2 OHIO FIRST DISTRICT COURT OF APPEALS

present in the vehicle. J.F. argues that the officers’ conduct was unreasonable as they

had no reasonable, articulable suspicion that he was armed or dangerous. We disagree

and hold that that the officers’ protective conduct of asking J.F. to roll down his tinted

windows during a lawful traffic stop to look in the back seat and determine whether

any other occupants were present was not unconstitutionally intrusive conduct

because, just like in Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct. 330, 54

L.Ed.2d 331 (1977), the conduct was a minimally invasive additional intrusion to the

lawful traffic stop that was reasonable and no more intrusive than necessary under the

circumstances to protect the officers’ safety.

{¶4} The second issue we are tasked with determining in this appeal is

whether J.F.’s adjudication was supported by sufficient evidence and not against the

manifest weight of the evidence where J.F. denied any knowledge of the firearm in the

back seat. We hold the adjudication was supported by sufficient evidence and not

against the manifest weight of the evidence where the evidence showed that J.F. was

exercising dominion and control over the vehicle when the firearm was found, was the

only occupant in the vehicle, admitted that he had previously touched the firearm, the

firearm was plainly visible, and the location of the firearm in the vehicle permits the

inference that J.F. could have placed the firearm in the exact position it was in by

reaching behind him from the driver’s seat and placing it there.

I. The Motion to Suppress

{¶5} In his first assignment of error, J.F. argues that the juvenile court erred

in denying his motion to suppress evidence obtained in violation of his rights under

the Fourth Amendment to the United States Constitution and Article I, Section 14 of

the Ohio Constitution.

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A. Relevant Factual and Procedural History

{¶6} J.F. filed a motion to suppress “all evidence the state may seek to

introduce at trial,” asserting that the evidence was obtained as a result of an

unreasonable search and seizure since the potential window-tint violation did not

result in the officers having a right to search the driver, the passengers, or the vehicle.

{¶7} At the hearing on the motion, the second officer testified that they

observed the vehicle with excessive window tint and could not see the occupants in the

vehicle when it drove past. When asked why J.F. was asked to roll his windows down,

the officer replied, “For officer safety. We weren’t able to see in the vehicle. We didn’t

know how many occupants were in the vehicle.” The officer said that he pulled J.F.

over for excessive window tint and agreed that he had no suspicion that anything else

was going on in the car other than possibly driving with excessive window tint. He

explained, “Because we can’t see in the car. Either way, we didn’t how [sic] many

occupants were in the vehicle or objects in the vehicle or anything.” He agreed that

not being able to see in the back seat was concerning and said, “Because I don’t know

if there are more occupants in there, there could be a weapon. When I put out my stop,

I advised dispatch—we advise them how many occupants in the car. I let them know

unknown occupants, heavy window tint. That was before he rolled the window down.

So on approach, I couldn’t see anything. Even though the driver’s window was down,

I still couldn’t see any of the passengers.”

{¶8} When asked about his dispatch call and why he reported to dispatch

how many occupants were in the vehicle, he replied, “We always let them know how

many occupants are in the vehicle. Right now it’s unknown. We don’t know how many

occupants are in the vehicle.” When asked what the purpose of that was, he said, “Just

in case if there’s more occupants, five occupants, they would have sent us another car.

4 OHIO FIRST DISTRICT COURT OF APPEALS

If we get into a physical altercation, people know—dispatch is aware how many

occupants were in the vehicle.” When questioned on whether he asks the driver of a

vehicle to roll down the windows during every traffic stop, he answered, “I do if they

have excessive window tint and I can’t see in the vehicle. I’ll ask them to roll down all

the windows all the time.” He said, “If I can’t see in there, especially at nighttime, it

decreases visibility, so less visibility, I’ll ask them to roll down their windows all the

time.”

{¶9} The magistrate denied the motion to suppress after finding that J.F. was

asked to roll down his windows for officer safety during a lawful traffic stop as the

officers were unable to identify if there were any other occupants in the vehicle due to

the excessive window tint, and the firearm was thereafter seen in plain view. J.F.

objected to the magistrate’s decision, asserting the same arguments that he made in

his motion to suppress. The juvenile court overruled the objection, finding that the

officers conducted a proper investigative search and found the firearm within the

scope of that search, rather than through a search of the interior of the vehicle to locate

the firearm.

B. Standard of Review

{¶10} “ ‘Appellate review of a motion to suppress presents a mixed question of

law and fact. When considering a motion to suppress, the trial court assumes the role

of trier of fact and is therefore in the best position to resolve factual questions and

evaluate the credibility of witnesses.’ ” State v. Childers, 1st Dist. Hamilton No. C-

220301, 2023-Ohio-948, ¶ 7, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, ¶ 8. “An appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence, then

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independently determine, without deference to the conclusion of the trial court,

whether the facts satisfy the legal standard.” Id., citing Burnside at ¶ 8.

C. Law and Analysis

{¶11} Generally, “[a] driver ‘possesses “no legitimate expectation of privacy

shielding that portion of the interior of an automobile which may be viewed from

outside the vehicle by either inquisitive passersby or diligent police officers.” ’ ” State

v. Brown, 2d Dist. Montgomery No. 28153, 2019-Ohio-3684, ¶ 8, quoting State v.

Thompson, 2d Dist. Montgomery No. 25658, 2013-Ohio-4825, ¶ 11. “Moreover, an

officer’s use of a flashlight to better illuminate a vehicle’s interior does not convert the

officer’s action into a search implicating the Fourth Amendment.” Id., citing Texas v.

Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

{¶12} Here, J.F. argues that that trial court erred in denying his motion to

suppress as he had a reasonable expectation of privacy in the back seat of the vehicle

where the back windows were legally tinted from view by a passerby and the officers

lacked reasonable, articulable suspicion that J.F. was armed or dangerous.

{¶13} “The touchstone of [the United States Supreme Court’s] analysis under

the Fourth Amendment is always ‘the reasonableness in all the circumstances of the

particular governmental invasion of a citizen’s personal security.’ ” Mimms, 434 U.S.

at 108-109, 98 S.Ct. 330, 54 L.Ed.2d 331, citing Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). “Reasonableness, of course, depends ‘on the balance

between the public interest and the individual’s right to personal security free from

arbitrary interference by law officers.’ ” Mimms at 109, citing United States v.

Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

{¶14} In Mimms, while on routine patrol, two officers observed Mimms

driving an automobile with an expired license plate. Id. at 107. The officers stopped

6 OHIO FIRST DISTRICT COURT OF APPEALS

the vehicle for the purpose of issuing a traffic summons. Id. One of the officers

approached and asked the driver to step out of the car and provide his license and

registration. Id. Upon his exit, officers noticed a large bulge under his jacket. Id. The

officers then frisked Mimms and discovered a loaded firearm. Id. The United States

Supreme Court addressed the “narrow question of whether the order to get out of the

car, issued after the driver was lawfully detained, was reasonable and thus permissible

under the Fourth Amendment.” Id. at 109. The Court first looked at “the side of the

balance which bears the officer’s interest in taking the action that he did.” Id. There

was no dispute that the officer did not suspect foul play from the driver at the time of

the stop since there was no unusual or suspicious behavior. Id. Rather, it was the

officer’s practice to order all drivers out of their vehicles as a matter of course

whenever they were stopped for a traffic violation. Id. at 110. The state argued that

this was necessary for officer safety to reduce the possibility that the driver could make

unobserved movements. Id. The Court first held that officer safety was a “legitimate

and weighty” justification and recognized its prior statement in Terry that it would be

unreasonable to require police officers to take unnecessary risks in the performance of

their duties. Id.

{¶15} The Court then said:

Against this important interest we are asked to weigh the

intrusion into the driver’s personal liberty occasioned not by the initial

stop of the vehicle, which was admittedly justified, but by the order to

get out of the car. We think this additional intrusion can only be

described as de minimis. The driver is being asked to expose to view

very little more of his person than is already exposed. The police have

already lawfully decided that the driver shall be briefly detained; the

7 OHIO FIRST DISTRICT COURT OF APPEALS

only question is whether he shall spend that period sitting in the driver’s

seat of his car or standing alongside it. Not only is the insistence of the

police on the latter choice not a ‘serious intrusion upon the sanctity of

the person,’ but it hardly rises to the level of ‘petty indignity.’ Terry * *

* at 17. What is at most a mere inconvenience cannot prevail when

balanced against legitimate concerns for the officer’s safety.

Id. at 111.

{¶16} Therefore, the United States Supreme Court held that the officer’s order

to get out of the car, issued after the driver was lawfully detained, was reasonable and

thus permissible under the Fourth Amendment. Id. at paragraph one of the syllabus.

{¶17} Later, in Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d

41 (1997), the United States Supreme Court expanded the rule of Mimms to allow an

officer to also order any passengers from the vehicle during a lawful traffic stop. In

doing so, the Court held that, “[o]n the public interest side of the balance, the same

weighty interest in officer safety is present regardless of whether the occupant of the

stopped car is a driver or a passenger.” Id. In fact, the Court said that “more than one

occupant of the vehicle increases the possible sources of harm to the officer.” Id. The

Court then addressed the “personal liberty side of the balance” and said:

[T]he case for the passenger is in one sense stronger than that

for the driver. There is probable cause to believe that the driver has

committed a minor vehicular offense, but there is no such reason to stop

or detain the passengers. But as a practical matter, the passengers are

already stopped by virtue of the stop of the vehicle. The only change in

circumstances which will result from ordering them out of the car is that

they will be outside of, rather than inside of, the stopped car. Outside

8 OHIO FIRST DISTRICT COURT OF APPEALS

the car, the passengers will be denied access to any possible weapon that

might be concealed in the interior of the passenger compartment. It

would seem that the possibility of a violent encounter stems not from

the ordinary reaction of a motorist stopped for a speeding violation, but

from the fact that evidence of a more serious crime might be uncovered

during the stop. And the motivation of a passenger to employ violence

to prevent apprehension of such a crime is every bit as great of that of

the driver.

Id. at 413-415.

{¶18} Accordingly, the Court concluded:

In summary, danger to an officer from a traffic stop is likely to

be greater when there are passengers in addition to the driver in the

stopped car. While there is not the same basis for ordering the

passengers out of the car as there is for ordering the driver out, the

additional intrusion on the passenger is minimal. We therefore hold

that an officer making a traffic stop may order passengers to get out of

the car pending completion of the stop.

Id. at 414-415.

{¶19} Thus, “ ‘[i]n determining the reasonableness of a particular law

enforcement practice, a court must weigh the public interest promoted by the practice

against its intrusion upon the personal rights of the individual protected by the

[F]ourth [A]mendment.’ ” State v. Gardner, 135 Ohio St.3d 99, 2012-Ohio-5683, 984

N.E.2d 1025, ¶ 17, quoting Wanger v. Bonner, 621 F.2d 675, 681 (5th Cir.1980).

9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶20} Here, the record supports that, while J.F. was already lawfully

detained,2 the officers asked J.F. to roll down all the windows during the stop to

ascertain—for their safety—if there were any other occupants in the vehicle. Thus, like

in Mimms and Wilson, the officers’ interest in taking the action was their safety. And

although the officers had no particularized suspicion that J.F. was armed or

dangerous, the fear for their safety in the situation was appreciable as they could not

see into the vehicle to assess their risk due to the tinted windows.

{¶21} On the other hand, J.F. asserts that the intrusion upon his rights in this

case is a “potentially” far greater invasion into the privacies of life than the situation

in Mimms since “a driver is forced to expose much more of the private aspects of his

life.”

{¶22} In United States v. Stanfield, 109 F.3d 976 (4th Cir.1997), the Fourth

Circuit Court of Appeals addressed a similar question concerning tinted windows. The

court stated the issue as:

Confronted with the grave risk that tinted windows pose to the

safety of law enforcement personal, we address herein whether the

government’s substantial interest in officer safety during a lawful traffic

stop outweighs the intrusion on the privacy interests of the vehicle’s

occupants which results when, because of the heavily tinted windows

that prevent the interior compartment from being viewed, an officer

opens a door of the vehicle in order to ensure that the vehicle’s driver is

unarmed and that there are no other occupants who might threaten his

safety during the investigatory stop.

2 J.F. does not dispute the validity of the initial stop.

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Id. at 978.

{¶23} The court held that, “the substantial government interest in officer

safety which exists when law enforcement officers must approach vehicles with heavily

tinted windows far outweighs any minimal privacy interest the suspect retains in the

otherwise visible interior compartment of his vehicle.” Id. In doing so, the court said:

[A]part from the fact that there is a considerably reduced privacy

interest in a vehicle’s interior passenger compartment as a matter of

law, the driver and other occupants of a lawfully stopped vehicle have

already had their liberty curtailed. Moreover, because the driver must

comply with routine requests for identification and registration, he will

be required at some point during the brief detention to expose the

interior compartment of his vehicle to view through at least one window,

if for no other reason than to interact with the officer. Of course, when

the driver lowers the window, then much if not all of the car’s interior

will be visible to the officer.

The additional interference with the occupants’ privacy interests

affected by the opening of one of the vehicle’s doors would seem

minimal when measured against the enormous danger law enforcement

officers face when they approach a vehicle with heavily tinted windows.

Such an intrusion would seem considerably less than the intrusions

affected by ordering the driver and passengers to exit the vehicle and to

proceed to the shoulder of the road, which were held in Mimms and

Wilson, respectively, to be “de minimis” in comparison to the states’

interests in protecting their law enforcement personnel under

circumstances far less inherently dangerous than those existing when

11 OHIO FIRST DISTRICT COURT OF APPEALS

the stopped vehicle has heavily tinted windows. Not only does the

person subjected to the limited search entailed in the opening of the

vehicle door not have his entire body exposed to the view of the officers

and public, he also retains his liberty interest in remaining seated in his

automobile during the duration of the detention. Indeed, the actual

invasion of privacy entailed in an officer’s opening of the vehicle door is

indistinguishable from, if not precisely the same as, that which occurs

when an occupant is required to open a door to exit a vehicle pursuant

to an order given under the authority of Mimms or Wilson.

Id. at 982-983.

{¶24} We find Stanfield to be persuasive. Even where the back windows are

legally tinted from view, a passerby or officer can still see into the back seat from the

windshield or the front side windows, meaning that the back seat can, at most, be only

partially shielded from view, and the interior of the vehicle will further be exposed

through at least one window during the detention. Because the back seat can only be

partially shielded at best and J.F. was already lawfully stopped, the further intrusion

into the partial privacy of the back seat by rolling down the back windows does not

appear to be more than de minimus when compared to the officers’ concern for safety.

Notably, that area of the vehicle that would be exposed by rolling down the windows

would not be any more intrusive or exposing than what would be exposed when

ordering a car full of occupants to step out of the vehicle, which is permissible under

Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41. In fact, rolling down the windows

is a far less invasive practice as some of the lower areas of the vehicle remain under

cover from the vehicle doors. Thus, we see no persuasive reason to hold that, although

officers may lawfully order all occupants from a vehicle to ensure their safety during a

12 OHIO FIRST DISTRICT COURT OF APPEALS

lawful traffic stop, they may not also ask a driver to roll down all excessively-tinted

windows in order to determine whether there are other occupants in the vehicle that

may warrant an order for those occupants to exit from the vehicle for their safety.

{¶25} Notably, there is no indication in the record that the officers’ actions

went beyond the scope of ascertaining the occupants of the vehicle. They looked in the

back seat without crossing the plane of the vehicle. Both officers focused their

attention on J.F. after looking for other occupants. It was only upon noticing the

firearm in the back seat that the first officer returned his attention to the back seat.

The second officer did not appear to have noticed the firearm. Notably, the firearm

was located where a passenger would sit. It was not located on the floor, in the trunk

(which was exposed to the officers since the back seats were folded down), under a

seat, or anywhere that a passenger would not be located. The officer’s flashlight was

shined in the back seat for only two seconds before moving on to focus on J.F. prior to

the officer noticing the firearm. Thus, there is no indication that the officers’ actions

were more intrusive than necessary to avoid a potentially dangerous condition. See

generally, e.g., New York v. Class, 475 U.S. 106, 117-118, 106 S.Ct. 960, 89 L.Ed.2d 81

(1986) (holding that, based on facts where “the similarities [to Mimms] [were] strong

enough that the balancing of governmental interests against governmental intrusion

undertaken in those cases [was] also appropriate,” a search was reasonable where the

search “was focused in its objective and no more intrusive than necessary to fulfill that

objective.”).

{¶26} Accordingly, we hold that the officers’ protective conduct of asking J.F.

to roll down his tinted windows during a lawful traffic stop to look in the back seat and

determine whether any other occupants were present was not unconstitutionally

intrusive conduct in violation of the Fourth Amendment because, just like in Mimms,

13 OHIO FIRST DISTRICT COURT OF APPEALS

434 U.S. 106, 108-109, 98 S.Ct. 330, 54 L.Ed.2d 331, the conduct was a minimally

invasive additional intrusion to the lawful traffic stop that was reasonable and no more

intrusive than necessary under the circumstances to protect the officers’ safety.

{¶27} Beyond that, “[t]he Ohio Supreme Court has held that, absent

‘persuasive reasons,’ the Ohio Constitution will be read in the same manner as the

Federal Constitution regarding search and seizure issues.” State v. Washington, 10th

Dist. Franklin No. 00AP-663, 2001 Ohio App. LEXIS 1925, 4 (May 1, 2001), citing

State v. Robinette, 80 Ohio St.3d 234, 239, 685 N.E.2d 762 (1997). J.F. appears to

suggest that the Ohio Constitution affords him greater protection in this situation than

the Federal Constitution. However, J.F. did not raise this argument below. Therefore,

we decline to address it for the first time on appeal.

{¶28} For all the foregoing reasons, we overrule the first assignment of error.

II. Sufficiency and Manifest Weight

{¶29} In his second assignment of error, J.F. argues that the juvenile court

erred in adjudicating him delinquent when there was insufficient evidence to prove

every element of the offence and the adjudication was against the manifest weight of

the evidence.

A. Standard of review

{¶30} “In reviewing a challenge to the sufficiency of the evidence, a reviewing

court must determine whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of

the crime had been proven beyond a reasonable doubt.” State v. Brantley, 1st Dist.

Hamilton No. C-210258, 2022-Ohio-597, ¶ 14, citing State v. Jenks, 61 Ohio St.3d 259,

274, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

14 OHIO FIRST DISTRICT COURT OF APPEALS

{¶31} “When considering a challenge to the 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 a

manifest miscarriage of justice.” Brantley at ¶ 15, citing State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997). “Reversing a conviction as being against the

manifest weight of the evidence should be reserved for only the most ‘ “exceptional

case in which the evidence weighs heavily against the conviction.” ’ ” Id., quoting State

v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

B. The Record

{¶32} The body-worn camera footage shows that, once the first officer

identified the firearm in the back seat, he told J.F. to just keep his hands up and J.F.

replied, “Yes sir.” He then had J.F. turn off the car, put his phone—which was

connected to a call with his brother—in the passenger seat, and step out of the vehicle.

In response to questioning, J.F. told the first officer that he had his “temps,” and that

the car was his mom’s car. He then told his brother on the phone that he was “going

to jail, probably, it seems like it. I don’t know.” He then appears to tell the first officer

that the car was his brother’s car. The first officer then led J.F. to the back of the car

and the second officer read J.F. his rights. The second officer then asked J.F. whose

car it was, and J.F. responded that the car was probably in his aunt’s name. The first

officer asked him where he was headed, and J.F. answered that he was headed to get

his brother’s girlfriend and said, “That’s the only reason I’m out here.” In response to

questioning, J.F. told the second officer that he was driving from Mt. Healthy to Price

Hill and that it was his first time being in the car, but that he was the only one who was

in the car during the trip. He also said that he stopped at a gas station in Mt. Healthy.

15 OHIO FIRST DISTRICT COURT OF APPEALS

The second officer then walked J.F. to the back right passenger window, which was

still rolled down, and, while shining the flashlight on the firearm, said, “See that right

there?” J.F. looked in the window and looked around and the officer repeated, “See

that right there?” J.F. responded, “Oh, that’s a gun!” The following exchange then

occurred:

Officer 2: See the way it’s positioned, with the seats down? Do you

believe that if you were driving from Mt. Healthy, with

turns and breaking and everything like that, that gun

would just sit just like that perfectly?

J.F.: No sir.

Officer 2: Okay. Have you handled that gun at all?

Officer 2: I’m not saying it’s yours, but have you handled it?

J.F.: Mm-mm.

Officer 2: So, your DNA wouldn’t be on it?

J.F.: I don’t know.

Officer 2: Okay. So, what I’m going to ask you, we’ll walk back to the

car real quickly. * * * Do you know how DNA works? I

know you’re young and everything, do you know how

DNA works?

J.F.: Uh, I think.

Officer 2: Okay. So, you know how fingerprints, like you leave

something like a fingerprint?

J.F.: Yeah.

16 OHIO FIRST DISTRICT COURT OF APPEALS

Officer 2: And sometimes it’s hard to get a match on the fingerprint.

Well, DNA, if you touch something, you leave your skin

cells and your sweat and stuff like that if you touch

something.

J.F.: Mm-hmm.

Officer 2: Your DNA will be on it.

Officer 2: So, that’s what I’m trying to ask if you, if you—if you

touched that at all?

J.F.: Actually, I have touched it. But I didn’t know it was in the

car.

Officer 2: You touched it when, today?

J.F.: Yes, not today, but I touched it.

Officer 2: Okay, when did you realize it was in the car today?

J.F.: I didn’t know it was in the car at all.

Officer 2: You didn’t know it was in the car today?

J.F.: Huh-uh.

Officer 1: How did it get in that position?

J.F.: When I hopped in there, that was not in that position.

Officer 2: Okay. So, it wasn’t there when you got in the car?

J.F.: (Shakes head no)

Officer 2: But you told me you were the only person that’s been in

the car since you got in the car?

J.F.: Right.

Officer 1: Right?

17 OHIO FIRST DISTRICT COURT OF APPEALS

Officer 2: So, where was it when—it wasn’t in that position when

you started driving?

J.F.: No, I checked the whole…when I was in the car, I looked

in the back and it wasn’t there.

{¶33} When asked what J.F.’s demeanor was when he pointed out the gun, the

second officer testified, “I want to say—he said he didn’t see it. He acted like he seemed

surprised, but he kind of went like this a little bit (indicating).” He agreed that J.F.

exclaimed, “That’s a gun,” when he showed him the firearm. He said that he assumed

J.F. saw the gun because it was in plain view. He agreed that J.F. maintained that he

did not know there was a gun in the car. He also agreed that it was a possibility that

the gun could have been out of sight somewhere when J.F. checked the back of the car.

When asked if he speculated that the gun would move around while J.F. was driving,

he replied, “I mean, would it move around, yes. I just don’t—I guess, in my opinion,

when I asked that question was that I don’t believe that you drove around from Mt.

Healthy to Price Hill and that gun sat right where it sat. It didn’t fall into the trunk

and come back up. It was just almost like it was just in immediate reach.”

{¶34} R.C. 2923.16(B) provides, “No person shall knowingly transport or have

a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to

the operator * * * without leaving the vehicle.” J.F. asserts that the evidence does not

show that he knowingly had the firearm.

{¶35} “To ‘have’ a gun, ‘one must either actually or constructively possess’ it.”

State v. Banks, 10th Dist. Franklin No. 11AP-592, 2012-Ohio-1420, ¶ 5, quoting State

v. Dorsey, 10th Dist. Franklin No. 04AP-737, 2005-Ohio-2334, ¶ 32. “Constructive

18 OHIO FIRST DISTRICT COURT OF APPEALS

possession is knowingly controlling or maintaining power over a firearm ‘either

directly or through others.’ ” State v. Hicks, 1st Dist. Hamilton No. C-220540, 2023-

Ohio-2209, ¶ 10, citing State v. Phillips, 10th Dist. Franklin No. 14AP-79, 2014-Ohio-

5162, ¶ 121. “But a person’s mere presence in the vicinity of a firearm, alone, does not

create an inference of constructive possession.” Id., citing Phillips at ¶ 47. “Rather,

constructive possession may be inferred from a combination of facts, such as

awareness of a firearm that is within easy reach.” Id., citing Phillips at ¶ 47.

“Constructive possession may be demonstrated through circumstantial evidence.” Id.,

citing State v. English, 1st Dist. Hamilton No. C-080872, 2010-Ohio-1759, ¶ 32.

{¶36} J.F. points to the comparative cases of State v. Harris, 8th Dist.

Cuyahoga No. 88765, 2007-Ohio-3916, and Ohio v. Marneros, 8th Dist. Cuyahoga No.

109258, 2021-Ohio-2844, and argues that this case parallels Harris and is unlike

Marneros in that there was no evidence, beyond the location of the firearm, to prove

that J.F. had possession and/or knowledge of the firearm.

{¶37} In Harris, the court found that the evidence was insufficient to show

that a defendant, who was a passenger in a vehicle, knowing carried or had the

firearm—which was found toward the front of the passenger seat of the vehicle, about

four to five inches back, and leaning on its side against the seat adjustment bar—where

the gun was positioned in a way where it was accessible to anyone in the front seat,

and there was no evidence to establish that the car belonged to the passenger, or that

the passenger knew the gun was in the car. Harris at ¶ 5, 14-15.

{¶38} In Marneros, the court found that the evidence was sufficient to show

that the defendant, who was driving the vehicle, had “at the very least constructively

possessed” a gun, which was located between the driver’s seat and the center console

of the car, where, although his girlfriend who was not in the car alerted the officers

19 OHIO FIRST DISTRICT COURT OF APPEALS

over the phone of “her” gun in the car, which she allegedly placed there without the

defendant’s knowledge, the gun was found in the vehicle that the defendant was

exercising dominion and control over and was likely visible to the defendant due to its

location. Marneros at ¶ 2, 7, 39.

{¶39} J.F.’s assertion that this case parallels Harris is unpersuasive as the

defendant in Harris was not driving the car, was not the only one in the car, and the

location of the firearm could be accessed by either occupant. Here, although not the

owner of the car, J.F. was exercising dominion and control over the car when the

firearm was found, was the only occupant in the car, admitted that he had previously

touched the firearm, and the firearm was plainly visible. Further, the body-worn

camera footage and the photographs of the firearm’s placement in the vehicle permit

the inference that J.F. could have placed the firearm in that exact position it was in by

reaching behind him from the driver’s seat and placing it there. Accordingly, we

cannot say that the juvenile court’s inference of possession was not supported by

sufficient evidence or was against the manifest weight of the evidence. Therefore, the

second assignment of error is overruled.

III. Conclusion

{¶40} Having overruled the assignments of error, we affirm the judgment of

the juvenile court in the appeal numbered C-230464. Further, for the reasons stated

in footnote 1, the appeals numbered C-230465 and C-230466 are dismissed.

Judgment affirmed in C-230464; Appeals dismissed in C-230465 and C-230466.

BOCK, P.J., and WINKLER, J., concur.

Please note:

The court has recorded its own entry this date.