State v. Camacho

2021 Ohio 3975

• Court: Ohio Court of Appeals
• Decided: November 8, 2021
• Docket: 2021-L-054
• Status: Published

Opinion

[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.

Case No. 2021-L-054 {¶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.

Case No. 2021-L-054 {¶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).

Case No. 2021-L-054 {¶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

Case No. 2021-L-054 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

Case No. 2021-L-054 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

Case No. 2021-L-054 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

Case No. 2021-L-054 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.

Case No. 2021-L-054