From the totality of these circumstances, it is reasonable for the trier of fact to find that Mr. Vaughn placed the handgun into the attic and that it was extremely likely he knew where the rifle was located. Thus, the record contains evidence that Mr. Vaughn exercised dominion and control and was in the conscious presence of both firearms.
State v. Vaughn
2022 – Ohio – 3615
Seventh District Appellate Court
Mahoning County, Ohio
September 29, 2022
On Thursday January 16, 2020, a search warrant SWAT team that included Officer Francis Bigowsky, Officer Joseph Burnich, Officer Christopher Staley, and Officer Jim Welch arrived at the address during the evening hours. The officers knocked at the front door and announced their presence. Mr. Terrell Vaughn’s codefendant, Mr. Richard Cummings, answered the door and the officers entered the house. The officers began to “clear” each room of the residence. Four people were inside the house at the time the police arrived. While Mr. Cummings was the first person the team encountered, Mr. Vaughn was the second.
Officer Burnich testified that he located Mr. Vaughn while attempting to clear a hallway. The hallway does not encompass a large area, as the house itself is quite small. On the left side of the hallway is a small closet-like opening that did not have a door. Officer Burnich saw Mr. Vaughn as he “stepped out of that closet area.” He stated that he made contact with Mr. Vaughn “[a]t the closet entry.”
It appears that Officer Staley was behind Officer Burnich. Officer Staley heard Officer Burnich order Mr. Vaughn to the ground and observed Mr. Vaughn as “[h]e was coming out of that closet area.” After defense counsel reminded Officer Staley that his testimony at the preliminary hearing indicated that he had not observed Mr. Vaughn “inside” the closet, he amended his testimony by saying that he saw Mr. Vaughn “[d]irectly next to the closet.”
Mr. Vaughn’s proximity to this closet is important, here. The closet was described as similar to a coat closet, but deeper. While the inside of the closet was cluttered, the officers observed three steps inside. The officers used these steps to access an unfinished attic. The access point to the attic is an uncovered cutout in the ceiling. Photographs in evidence demonstrate that the opening is large enough to comfortably allow a large person to enter into the attic.
Three officers entered the attic area after the house was cleared. It appears that Officer Bigowsky entered first. Officer Bigowsky described his height as approximately six foot four or five inches. He testified he could reach his hand into the attic by standing on the bottom step. Officer Staley estimated the access point to be about eight feet from the floor. He stated that he had to use all of the steps and stand on his toes to hoist himself up into the attic area. No evidence was directly presented as to Mr. Vaughn’s height. However, a photograph of Mr. Vaughn was admitted into evidence and the top of his head can be seen to reach within six inches or so from the top of a door located inside the house.
The perimeter of the attic’s access point is surrounded by wooden studs and is small, but large enough to have allowed one of the officers who described his weight as 300 pounds to enter into the attic. The attic floor is unfinished and wooden studs are visible with insulation lying between the studs. Resting along one of the wooden studs that surround the access point is what is described as a “Hi-Point Model JCP .40 caliber handgun.” As shown in one of the photographs admitted into evidence, the handle is sticking up into the air and the top of the gun is resting on the floorboard. Several inches away from the handgun is what is described as a “Hi-Point 9mm Model 995 rifle.” No measurements are provided for the rifle but it appears to be at least two to three feet in length. The rifle is at least twice the width of the access point. Unlike the handgun, the rifle appears to have been strategically laid on its side across multiple wooden studs.
At the time that the officers discovered these firearms Mr. Vaughn was under a weapons disability due to a prior conviction. Consequently, on February 20, 2020, Mr. Vaughn was indicted on two counts of having a weapon while under a disability, felonies of the third degree in violation of O.R.C. §2923.13(B). The two counts correlated with the two firearms found in the attic. Mr. Vaughn waived jury trial and the matter proceeded to a bench trial.
Recorded Jail Phone Calls Include Self-Incrimination
The state admitted recordings of two jailhouse phone calls into evidence. Both calls were made to a female whose name is inaudible. It is clear that both calls were made to the same woman. In the first, Mr. Vaughn expressed concern that if he did not “beat this charge” [most especially since the phone calls are monitored] he may face federal charges having a possible prison term of up to forty months. He told the woman that he and “Rich” (his codefendant, Cummings) found the guns in the basement, and that he thought Mr. Cummings had moved them from the basement to the garage. In the second call, Mr. Vaughn asked her to contact a man whose name is also inaudible. He wanted her to ask the man to testify that he was present with Mr. Vaughn and Mr. Cummings when they found the firearms in the basement. This phone call underscores that communication is key when enforcing or committing felonies.
On June 17, 2020, the court filed a “Judge’s Decision” finding Mr. Vaughn guilty on both counts.
Mr. Vaughn filed a timely appeal to his conviction.
Weapons under disability
The offense of having a weapon while under a disability is found in O.R.C. § 2923.13(A)(2), which provides in relevant part:
(A) 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 any of the following apply: (2) 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 as an adult, would have been a felony offense of violence.
Constructive Possession
Constructive possession is where a defendant knowingly exercises dominion and control over an object regardless of whether the object is within his or her immediate physical possession. State v. Wolery, 46 Ohio St.2d 316, 329, (1976). Here, the parties agree that constructive possession is at issue.
When looking at constructive possession, a person’s mere presence or access to contraband or the area where contraband is found is insufficient to demonstrate dominion and control. State v. Gardner, 2017-Ohio-7241, 96 N.E.3d 925, ¶ 35 (8th Dist.), citing State v. Hall, 8th Dist. Cuyahoga No. 66206, 1994 WL 677554 (Dec. 1, 1994); State v. Tucker, 2016-Ohio-1353, 62 N.E.3d 903 (9th Dist.). Instead, there must be some evidence that the person exercised or had the ability to exercise dominion and control over the contraband. Gardner at ¶ 35, citing State v. Long, 8th Dist. Cuyahoga No. 85754, 2005-Ohio-5344. “It must also be shown that the person was conscious of the presence of the object.” State v. Hankerson, 70 Ohio St.2d 87, 91 (1982).
Beginning with access to the firearms, the state heavily relied on the testimony of Officers Burnich and Staley. Both officers testified that they observed Mr. Vaughn in or near the closet. Officer Burnich was the first to locate Mr. Vaughn. Officer Burnich testified that he saw Mr. Vaughn as he “stepped out of that closet area.” He testified that he made contact with Mr. Vaughn “[a]t the closet entry.” Defense counsel pointed out that this testimony was different from Officer Burnich’s preliminary hearing testimony. At that hearing, Officer Burnich said he saw Mr. Vaughn coming from the hallway area where the closet is located. During a dynamic entry, there may be some disparate recall of who was where and at what time.
Next, Officer Staley testified as to Mr. Vaughn’s location. At the time Officer Staley approached the hallway, Officer Burnich was in the process of ordering Mr. Vaughn to the ground. Officer Staley testified that he saw Mr. Vaughn as “[h]e was coming out of that closet area.” Again, defense counsel pointed to testimony from the preliminary hearing where Officer Staley said “I did not see [Mr. Vaughn] inside” the closet. Officer Staley clarified that he did not see Mr. Vaughn inside the closet, but that he was “[d]irectly next to the closet.”
Although the officers’ testimony does not place Mr. Vaughn inside the closet at first sighting, it certainly places him in a position where a reasonable finder of fact could determine that Mr. Vaughn had just exited the closet, and that his purposes of being in that closet was to hide the guns when he discovered that police were executing a search warrant. The closet did not have a door, thus the officers would not have the benefit of hearing or seeing a door shut. Further, although there were some discrepancies from the officers’ preliminary and trial testimony, it can be gleaned from their statements that they saw Mr. Vaughn within the doorway of the closet. Because it had no door and thus, was just an opening in the hallway, it would be difficult for the officer to describe Mr. Vauhgn’s exact position.
Again, the firearms were located in the attic, accessible through the large opening in the closet ceiling. Again, Mr. Vaughn’s proximity to the closet is critical. The closet was described as similar to a coat closet but somewhat deeper. The closet floor had three small steps. Apparently, these steps were to assist a person in reaching the access point to the attic, either to access the stored Christmas decorations or Hi-Point firearms.
Officer Bigowsky testified that he stepped on one step and was able to reach his hand into the attic area where the guns were found. Officer Staley testified that the access point is about eight feet from the ground, six or six and one-half feet if the steps are used. Officer Staley could hoist his body into the attic by using the steps and standing on his toes. While the record contains no evidence of Mr. Vaughn’s height, a photograph was admitted showing the top of his head reached to within six inches of the top of a door located inside the house.
Two firearms were found just inside the attic opening. One is described as a “Hi-Point Model JCP .40 caliber handgun.” It is depicted in a photograph admitted into evidence. The firearm is shown in the exact position where the officers discovered it, laying so that its handle stuck in the air with the top of the gun lying flat on the ground. The firearm is resting against a wooden stud that surrounds the perimeter of the opening. The state’s theory is that Mr. Vaughn hurriedly reached his hand up into the entrance, dropped the firearm, and it settled into this position, as the position in which it was found is not a typical storage position. However, my experience is that Hi-Point firearms are typically stored in non-typical ways. Hi-Point firearms and felons are most often found together in high crime areas AND appellate cases.
The second firearm is described as a “Hi-Point 9mm Model 995 rifle.” As shown in a photograph admitted into evidence, this firearm was found a few inches away from the handgun. Unlike the handgun, it seems to have been strategically placed into a storage-like position. The rifle can be seen lying flat across multiple wooden studs and is a little further from the attic opening, perhaps six inches. Additionally, this firearm is long, and from the photograph it appears to be at least two feet in length, which is at least twice the length of the opening. Although it does not appear that someone haphazardly tossed this firearm into the attic, it is very likely that the person hurriedly placing the handgun in the attic knew the rifle was there and that this is the area where the firearms were stored. Of course, it was “hurriedly placed” because Youngstown SWAT was at the door!
Mr. Vaughn knew the firearms were in the house, evidenced by two jailhouse phone calls that Mr. Vaughn made to the same woman. It is clear that the same female is the recipient of both calls. Recordings of these calls were admitted into the record. In the first, Mr. Vaughn told the woman that he had to “beat” the firearms charge because he feared federal charges and a lengthy prison term. He admitted to the woman that he and Mr. Cummings found the guns in the basement. While he seemed to express some surprise that the firearms were in the attic, whether he was actually surprised is a matter raising credibility issues.
In a second phone call to the same woman, Mr. Vaughn requested that she ask a man whose name is also inaudible to testify that he was with Mr. Vaughn and Mr. Cummings when they found the firearms in the basement. Apparently, Mr. Vaughn was anticipating a defense based on the fact that he did not own the guns and merely found them. Mr. Vaughn seemed to hold a mistaken belief that if he did not own or assert physical possession of the firearms, he could not be convicted of any criminal offense.
Court Acknowledges that the Jail Phone Calls Provided Proof
This record shows Mr. Vaughn knew the weapons were inside the house. At the time the police entered this house to execute a search warrant, Mr. Vaughn was discovered in or just outside the entrance of the area in which the guns were stored. At least one of these weapons appeared to have been quickly tossed into the attic.
These weapons were discovered during the execution of a search warrant seeking evidence of drug related activities. Significantly, Mr. Vaughn was under a weapons disability and knew this at the time police entered the house. While Mr. Vaughn was not charged with any drug related offenses, Mr. Vaughn certainly knew that once the search of the house was undertaken officers were likely to begin searching individuals at the residence. Mr. Vaughn was apparently discovered extremely soon after the officers entered the house.
Mr. Vaughn Previous Conviction of WUD
This matter is closely aligned with a recent case arising from this Court, State v. Harrison, 7th Dist. Jefferson No. 19 JE 0009, 2020-Ohio-3624. In Harrison, officers were called to check on a vehicle parked outside of a fast food restaurant. Inside the vehicle were two occupants who appeared to be consuming drugs. Id. at ¶ 6. The officers approached the vehicle and observed the Mr. Vaughn, who was the driver, with a marijuana cigarette. The officers subsequently searched the vehicle which belonged to his female passenger’s mother. While the Mr. Vaughn did not own the car, it had been in his possession while he completed repairs on it and he had been driving it on the day of the incident. Officers located a gun underneath the passenger seat. Although he denied knowledge of the gun’s existence, the Mr. Vaughn was charged and convicted of having a weapon while under disability.
In affirming the Mr. Vaughn’s conviction, we relied in large part on his access to the vehicle, the Mr. Vaughn’s knowledge of his weapons disability, the rationale that the Mr. Vaughn would seek to hide the firearm based on his weapons disability, and a jailhouse call where the Mr. Vaughn admitted possession of the gun at some point before the incident occurred.
Holding
From the totality of these circumstances, it is reasonable for the trier of fact to find that Mr. Vaughn placed the handgun into the attic and that it was extremely likely he knew where the rifle was located. Thus, the record contains evidence that Mr. Vaughn exercised dominion and control and was in the conscious presence of both firearms.
Information for this article was obtained from State v. Vaughn, 2022 – Ohio – 3615.
This case was issued by the Seventh District Appellate Court which is binding in the following Ohio Counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble.
Lessons Learned:
- In this case the Seventh District Appellate Court determined that Mr. Vaughn constructively possessed the two firearms in the attic. The Doctrine of Constructive Possession has two elements: 1) Some evidence that the person exercised or had the ability to exercise dominion and control over the contraband; and 2) It must also be shown that the person was conscious of the presence of the object. State v. Hankerson, 70 Ohio St.2d 87, 91 (1982). In this case Mr. Vaughn had the ability to exercise dominion and control over the firearms and by his own admission in the jail phone calls, he was conscious of the presence of the firearms.
- Law enforcement must be cognizant that Constructive Possession has two elements, not simply that the suspect ‘could’ have dominion and control but also that the suspect was conscious of the presence of the object. This second prong may be challenging for the officers to articulate.
- Though not included in the redacted version of the case, the court opined “The state notes that the firearms had apparently not been in the attic for a long period of time, as there was no dust on them.”. This somewhat minor fact had significant impact on Mr. Vaughn’s feeble attempt at claiming he was not aware of the firearms. The SWAT team articulated in the investigative notes that the firearms did not have dust on the surface. This provided one more factor in the guilt of Mr. Vaughn. Well done Youngstown SWAT!
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