STATE OF OHIO v. CHRISTOPHER J. O’MALLEY

Cleveland, Ohio - Criminal defense attorney represented Christopher J. O'Malley with a appealing his conviction for having weapons while under disability charge.

These charges arose from a missing firearm, owned by the victim

Tiffany Holstein ("Holstein”), that allegedly went missing from her home after her

birthday celebration on November 24, 2018. As of November 2018, Holstein was

living with her boyfriend Robert Higgins ("Higgins”), at 4529 West 130th Street in

Cleveland, a home owned by Higgins's uncle, who lived in the basement. She had

been living there for four to five months at that time. Higgins's cousin "Fluffy,”

whose real name is unknown to Holstein, and his friend "Dalton” also lived in the

house. The home had three bedrooms upstairs and one on the main floor, in

addition to the living quarters in the basement. There was only one stairway to the

second floor, which was opposite the front door of the home.

Holstein testified that she and Higgins shared a bedroom on the

second floor, which they kept padlocked unless one of them was home. The couple

shared a pitbull that was kept in the bedroom when they were not home as well. Holstein also kept two firearms in her bedroom, a semiautomatic .22 caliber

handgun and a 9 mm Hi-Point. Holstein testified that both firearms were loaded at

all times. Holstein testified she kept the .22 caliber firearm out most of the time,

either next to her or with her. When she was not home, she kept the .22 caliber

firearm in her bedroom closet on the top shelf behind other objects. She kept the 9

mm firearm on the side table next to her bed under coloring books.

On November 24, 2018, the day before Holstein's birthday, she,

Higgins, Holstein's cousin Brandon Williamson ("Williamson”), and O'Malley

gathered at their house before they went downtown to celebrate. Holstein testified

that she had met O'Malley through Williamson and considered him a friend.

Higgins also considered him a friend. O'Malley and Holstein would see each other

a few times a week, sometimes at Holstein's house. She testified that O'Malley was

familiar with her firearms.

That night, before the party, Holstein had covered her 9 mm firearm

with coloring books in its usual spot on top of her bedside table. Once people arrived

but before they all went downtown that night, O'Malley put his belongings, which

included a duffel bag, in Holstein's room for safekeeping. While O'Malley was in the

room with her, she placed the .22 caliber firearm up in her closet where she normally

stored it and closed the closet door.

The group left the house to go downtown at 10:00 or 11:00 p.m. and

returned to the home at about 2:00 a.m. At some point during the evening, Holstein

and O'Malley got into an argument. When they got back to the house, the argument escalated to the point where Holstein punched O'Malley in the face. Holstein then

went upstairs and unlocked her bedroom door to let her dog out while everyone was

downstairs. She eventually brought the dog back upstairs, shut her door, and went

back downstairs without locking her door. Holstein and O'Malley continued to

argue in the living room with Higgins, while Williamson was asleep on the couch.

Fluffy was in his room upstairs and Higgins's uncle was in the basement. Holstein

was unsure if Dalton was in his room.

At some point during the argument, O'Malley abruptly went upstairs

to retrieve his belongings and left the house when his mother arrived. Holstein felt

the way he left was suspicious, so after O'Malley departed, she went to her room,

where she noticed the closet door was open. Holstein could not remember if she had

opened it since being home, but she knew she had closed it before they went out.

She checked on her .22 caliber firearm and when she could not find it, she

immediately suspected O'Malley stole it. Higgins testified that he called O'Malley

and asked O'Malley if he had it, and O'Malley denied having the firearm. Holstein

and Higgins then looked for the firearm but were unable to find it. Holstein called

the police to report it missing and told the police O'Malley had taken it. The next

day, Higgins found the "missing”.22 caliber firearm underneath a glass table at the

bottom of the stairs by the front door. It was not until one week later, on November 30, 2018, that Holstein

noticed her 9 mm firearm was missing from the table next to her bed.1 The coloring

books were undisturbed, so it was not until Holstein was looking for her 9 mm

firearm to go to the shooting range that she noticed it was not there. She searched

the house for the firearm for a day before contacting the police about this second

missing firearm on December 1, 2018. The following day, Officer Wise from the

Cleveland Police Department responded to her call. Holstein told Officer Wise that

she believed O'Malley took the 9 mm firearm.

Holstein then testified that on December 27, 2018, she received

Facebook messages from O'Malley. They often communicated through Facebook's

Messenger application. Holstein claimed to have taken screenshots of the messages

between her and O'Malley that occurred on December 27th, 28th, and 31st as well

as an additional message from March 7, 2019. She provided these screenshots to

Detective Holt, from the Cleveland Police Department's First District, who was

assigned to her case on February 21, 2019. At trial, the state had the screenshots

admitted into evidence as state's exhibit No. 4.

Throughout the messages, O'Malley apologizes and vaguely

references an "it” that he should not have touched, that he was going to bring "it”

back the next day, but "it” was stolen from him that night and sold before he could.

1 Holstein was unable to remember the number of days that passed between her

birthday celebration, when she noticed her 9 mm firearm missing, and when the officer

arrived, but said it could have been at least a week before she noticed. Higgins testified it

was just a couple days later that she noticed. Officer Wise's testimony, which is based on

his report, is the only evidence of specific dates for these events. He then offers to buy her a new "it.” Throughout the conversation, O'Malley refers

to a few specific events from the evening of November 24, 2018, such as his

argument with Holstein, her punching him, and how his mother picked him up. In

one message on December 27, 2018, he mentions a "hy point [sic],” and on the

December 28, 2018, he states his mom has the $200.00 he wants to give Holstein

to buy a new one, but he would "really like to just get [Holstein] the gun instead.”

O'Malley even mentions getting her a firearm that does not jam, as Holstein testified

her Hi-Point would jam on occasion. On March 7, 2019, O'Malley messaged

Holstein again through Facebook Messenger and this time, rather than reply with a

message, Holstein testified that she called him through Facebook Messenger and

they discussed the missing 9 mm firearm over the phone. Holstein testifies that

O'Malley offered again to pay for a new firearm, but she told him she just wanted

her firearm back.

The defense only called one witness, Dana Driver ("Driver”), who

testified that, while not currently dating, she and O'Malley had been dating on and

off for years. In November 2018, they were dating, although they were not on the

best of terms. Driver testified that she suspected Holstein and O'Malley were

romantically involved. Looking to upend this potential relationship, she testified

that she began messaging Holstein in late December 2018, posing as O'Malley

through his Facebook Messenger account. Driver testified that O'Malley's phone was

not password protected, so she could easily message Holstein through his phone

without his knowledge on his Facebook account. Driver testified that she messaged Holstein through O'Malley's

account, posing as him, to tell Holstein that O'Malley stole her firearm. She stated

she was aware of Holstein's accusation of the missing firearm through reading their

prior messages. Driver testified that she messaged Holstein, as O'Malley, saying

whatever she thought would make Holstein angry with O'Malley, based on what she

could glean from their prior messages. The details provided in the messages,

according to Driver, were all things Driver made up based on what she knew about

what happened on November 24, 2018, from O'Malley, mutual friends, and

O'Malley's mother.

Driver testified that she broke up with O'Malley in February 2019

because she was still convinced he was romantically involved with Holstein.

Because of this separation, she was unaware O'Malley was being prosecuted for

allegedly stealing Holstein's firearm. She testified that once she found out he was

being prosecuted, she decided to come forward, two months before trial, to admit to

falsely messaging Holstein through O'Malley's account. To that end, she met with

both defense counsel and the assistant county prosecutor at a pretrial hearing to

discuss her testimony.

The jury trial on Count 1 commenced on November 18, 2019, and on

November 21, 2019, the jury reached a not guilty verdict on the grand theft charge.

That same day, having heard the same evidence as the jury, the trial court found

O'Malley guilty on Count 2 for having weapons while under disability. On November

24, 2019, following this conviction, O'Malley filed a motion after verdict for judgment of acquittal, which the trial court denied on January 7, 2020. That same

day, the trial court sentenced O'Malley to two years of community control with a 36-

month suspended prison sentence and ordered O'Malley to pay $200.00 in

restitution to Holstein for the firearm. O'Malley timely appealed the January 7,

2020 judgment entry.

This appeal follows. O'Malley asserts the following four assignments

of error:

Assignments of Error

I. There is insufficient evidence to support O'Malley's conviction for

having a Weapon under disability.

II. O'Malley's conviction for having a Weapon under disability was

against the manifest weight of the evidence.

III. O'Malley's conviction for having a Weapon under disability violates

the doctrine of collateral estoppel and violates his rights under the 5th

and 14th amendments to the United States Constitution and Article I,

Section 10 of the Ohio Constitution.

IV. Because the jury acquitted O'Malley of stealing Holstein's gun, the

trial court's order of restitution is contrary to law.

LAW AND ANALYSIS

O'Malley's first and second assignments of error allege his conviction

by the trial court for having a weapon under disability in violation of R.C. 2923.13

was supported by insufficient evidence and was against the manifest weight of the

evidence. As both assignments of error deal with the evidence produced at trial, they

will be dealt with together. While it is not clear in the record which firearm

O'Malley's conviction was based on, upon review we find that there is sufficient evidence to sustain O'Malley's conviction on his possession of either firearm and it

is not against the manifest weight of the evidence.

"An appellate court's function in reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant's guilt beyond a reasonable doubt.” State v. Rogers, 178 Ohio

App.3d 332, 2008-Ohio-4867, 897 N.E.2d 1171, ¶ 41 (8th Dist.), citing State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. "In

essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient

to sustain a verdict, is a question of law.” Id., quoting State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997).

"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 crime proven beyond a reasonable doubt.” State v.

Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12, citing Jenks at

paragraph two of the syllabus. "'Proof beyond a reasonable doubt' is proof of such

character that an ordinary person would be willing to rely and act upon it in the most

important of the person's own affairs.” Cleveland v. Watson, 8th Dist. Cuyahoga

No. 108746, 2020-Ohio-3284, ¶ 30, quoting R.C. 2901.05(E).

While the test for sufficiency requires a determination of whether the

prosecution has met its burden of production at trial, a manifest weight challenge

questions whether the prosecution has met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12-13, citing

Thompkins at 390.

In assessing whether a conviction is against the manifest weight of

the evidence, we examine the entire record, weigh the evidence and all reasonable

inferences, and consider the witnesses' credibility. Gerston v. Parma VTA, L.L.C.,

8th Dist. Cuyahoga No. 105572, 2018-Ohio-2185, ¶ 58. There is a presumption that

the factfinder's determinations are correct unless we find that the factfinder "clearly

lost its way and created such a manifest miscarriage of justice that the verdict must

be overturned and a new trial ordered.” Illum. Co. v. Bosemann, 2020-Ohio-3663,

154 N.E.3d 1205, ¶ 28 (8th Dist.), quoting Gerston at ¶ 58-59. This is presumed

because the trier of fact had the opportunity "to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.” Gerston at ¶ 59, quoting Seasons Coal v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

"A verdict supported by some competent, credible evidence going to

all the essential elements of the case must not be reversed as being against the

manifest weight of the evidence.” Gerston at ¶ 57, citing Domaradzki v. Sliwinski,

8th Dist. Cuyahoga No. 94975, 2011-Ohio-2259, ¶ 6; C.E. Morris Co. v. Foley

Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. A conviction should

be reversed only in the most "exceptional case in which the evidence weighs heavily

against the conviction.” State v. Philpott, 8th Dist. Cuyahoga Nos. 109173, 109174,

and 109175, 2020-Ohio-5267, ¶ 77, quoting Thompkins at 388. O'Malley was convicted by the trial court of having weapons while

under disability in violation of R.C. 2923.13(A)(3), 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:

* * *

(3) The person is under indictment for or has been convicted of any

felony offense involving the illegal possession, use, sale,

administration, distribution, or trafficking in any drug of abuse.

Because O'Malley stipulated to having a prior felony conviction at trial, the state had

to present evidence to prove beyond a reasonable doubt that O'Malley knowingly

acquired, had, carried, or used a firearm to sustain a conviction for having

a weapon while under disability. R.C. 2923.13. Although the statute does not list

possession as an element, the state is required to prove that O'Malley knowingly had

a firearm. State v. Body, 8th Dist. Cuyahoga No. 109388, 2021-Ohio-703, ¶ 29. To

"have” a weapon under disability requires either actual or constructive possession.

Id. Therefore, the state had to put forth evidence to establish, beyond a reasonable

doubt, that at some point, O'Malley had either actual or constructive possession of

a firearm.

"Actual possession entails ownership or physical control, whereas

constructive possession is defined as knowingly exercising dominion and control

over an object, even though that object may not be within one's immediate physical

possession.” State v. Chandler, 8th Dist. Cuyahoga Nos. 93664 and 93665, 2011-

Ohio-590, ¶ 55, citing State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d 1362 (1982). An individual's mere presence in an area where a firearm is located (or was

located) does not conclusively establish constructive possession; however, this

presence, "coupled with another factor probative of dominion or control over the

contraband, may establish constructive possession.” State v. Body, 8th Dist.

Cuyahoga No. 109388, 2021-Ohio-703, ¶ 39, quoting State v. Cooper, 3d Dist.

Marion No. 9-06-49, 2007-Ohio-4937, ¶ 26.

Ohio courts have "long held that circumstantial evidence is sufficient

to sustain a conviction if the evidence would convince the average mind of the

defendant's guilt beyond a reasonable doubt.” State v. McKnight, 107 Ohio St.3d

101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d

231, 238, 553 N.E.2d 1026 (1990). Circumstantial evidence is proof of facts or

circumstances by direct evidence from which the trier of fact may reasonably infer

other related or connected facts that naturally or logically follow. Body at ¶ 31, citing

State v. Beynum, 8th Dist. Cuyahoga No. 69206, 1996 Ohio App. LEXIS 2143 (May

23, 1996).

Holstein's testimony establishes where the firearms were located

before going out for her birthday and how at least one was noticeably relocated that

evening after O'Malley was in her bedroom. The firearms had two locations in which

they were individually kept, the .22 caliber firearm in her closet and the 9 mm

firearm next to her bed under coloring books. Holstein testified she was certain she

had put the .22 caliber firearm back in the closet and shut the closet door before

leaving to go out drinking that evening. She testified O'Malley was in the room when she did that. Then, when she went upstairs after O'Malley had left, she saw the closet

door open and the firearm missing. The .22 caliber firearm was then found under

the glass table at the bottom of the stairs right next to the front door. Simply put,

her testimony regarding to the .22 caliber firearm establishes where the gun was last

seen, who was last alone with it, and that someone moved it from its regular spot to

a place it is never kept.

For our sufficiency analysis, the relevant inquiry is if the state's

evidence through Holstein's testimony is believed, could any rational trier of fact

have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Philpott, 8th Dist. Cuyahoga Nos. 109173, 109174, and 109175, 2020-Ohio5267, ¶ 38, citing Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). For

the .22 caliber firearm, the testimony of Holstein, if believed provides ample

opportunity for the trier of fact to infer that the only person who had the opportunity

to move the .22 caliber firearm was O'Malley, and the only way he could do so would

be to take actual possession of the .22 caliber firearm and move it downstairs.

Believing the state's evidence, any rational trier of fact could have found sufficient

evidence beyond a reasonable doubt that O'Malley must have possessed the .22

caliber firearm, the only element the state was required to prove in this case. Id.

Next, we review the state's evidence regarding the 9 mm firearm,

which mainly consisted of Holstein's testimony and the Facebook messages between

her and O'Malley. Holstein testified that she did not notice her 9 mm firearm was

missing for almost a week because it is usually kept concealed by coloring books on her bedside table. She went to retrieve the 9 mm firearm to go to the shooting range

and it was not in its usual location. She testified that she called the police and told

them no one else had been in her and Higgins's room besides O'Malley.

Then, Holstein presented screenshots of Facebook messages between

her and O'Malley on three separate days, two in December 2018 and one in March

2019, to the police. She testified as to the authenticity of the messages, which

document O'Malley apologizing for touching "it” and claiming that he was going to

bring "it” back the next day, but "it” was stolen from him that night and sold before

he could. Besides apologizing, O'Malley also offered Holstein $200.00 to make up

for losing "it,” and at one point even directly refers to a "hy point [sic],” the brand of

Holstein's missing 9 mm firearm. It is also worth noting that in these messages,

O'Malley referenced specific incidents from the evening of the birthday celebration,

like his argument with Holstein and the fact that she punched him. Holstein then

testified that when he messaged her on March 7, 2019, she called him and they

discussed the missing 9 mm firearm.

For our sufficiency analysis regarding the 9 mm firearm, the state's

evidence shows the firearm was in her bedroom before the birthday celebration and

was found missing from her bedroom one week later. The evidence showed no one

else was alone in the room with the firearm in the interim besides O'Malley. The

state also presented O'Malley's own statements through Facebook messages, where

he repeatedly and profusely apologized to Holstein for touching "it,” losing "it” and

not being able to return "it” and even offers her money for a new "it.” This evidence, if believed, is sufficient for any reasonable trier of fact to find the state proved

O'Malley possessed the 9 mm firearm.

As for our manifest weight analysis, we must examine the entire

record, including the only witness called by O'Malley, his former girlfriend, Dana

Driver. Driver testified that the Facebook messages to Holstein from O'Malley's

account were actually written and sent by her without his knowledge. She testified

as to both why and how she sent the messages. She also explained why she did not

come forward sooner to explain the messages for O'Malley. However, upon

weighing the entire record, we cannot say the trial court clearly lost its way nor

created a manifest miscarriage of justice with its conviction in this case. There is

enough evidence in the record from both Holstein's testimony and the Facebook

messages exchanged between Holstein and O'Malley to find O'Malley's possession

of either the .22 caliber firearm or the 9 mm firearm. This is not an exceptional case

in which the evidence heavily weighs against the conviction. Philpott, 8th Dist.

Cuyahoga Nos. 109173, 109174, and 109175, 2020-Ohio-5267, ¶ 77, quoting

Thompkins, 78 Ohio St.3d at 388, 678 N.E.2d 541 (1997). Based on the foregoing,

O'Malley's first and second assignments of error are overruled.

O'Malley's third assignment of error alleges his conviction for having

a weapon while under disability violates the doctrine of collateral estoppel and his

rights under the Fifth and Fourteenth Amendments to the United States

Constitution and Article I, Section 10 of the Ohio Constitution. O'Malley's basis for

this argument is that because the jury acquitted him of grand theft of Holstein's firearm, the trial court cannot convict him of having weapons while under disability.

He argues he could not have possessed the firearm, to satisfy the elements of having

weapons while under disability because the jury's acquittal on the grand theft charge

means he did not steal the firearm.

This court has dealt with this argument before. In State v. Eason,

2016-Ohio-5516, 69 N.E.3d 1202, ¶ 67 (8th Dist.), the defendant was charged with

drug trafficking, drug possession, possessing criminal tools, carrying concealed

weapons, having weapons while under disability, and improperly handling firearms

in a motor vehicle. Just like O'Malley, the weapons while under disability charge

was tried to the court and the jury considered the rest of Eason's charges. The jury

acquitted the defendant of all counts, while the trial court found Eason guilty of

having weapons while under disability. This court affirmed the conviction by the

trial court, holding that:

[c]onsistency between verdicts on several counts of a criminal

indictment is unnecessary, and where the defendant is convicted on

one or some counts and acquitted on others the conviction will

generally be upheld, irrespective of its rational incompatibility with the

acquittal.

Eason at id., citing State v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d 1018 (10th

Dist.1985). This court found double jeopardy and collateral estoppel did not apply

to the case of inconsistent verdicts where the inconsistent responses are to different

counts. Id. at ¶ 27, citing State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112

(1997), paragraph two of the syllabus. "Each count of a multi-count indictment is deemed distinct and independent of all other counts, and thus inconsistent verdicts

on different counts do not justify overturning a verdict of guilt.” Id. at ¶ 68.

This court held similarly in State v. Callahan, where the defendant

again was acquitted by a jury of charges such as murder, felonious assault, discharge

of a firearm on or near prohibited premises, and improperly discharging a firearm

at or into a habitation, but was convicted in a bench trial of two charges of having

weapons while under disability. State v. Callahan, 8th Dist. Cuyahoga No. 106445,

2018-Ohio-3590, ¶ 29. Callahan argued his conviction was barred by the doctrine

of collateral estoppel because the jury acquitted him of all the weapons-related

charges, so there was no evidence for the judge to have found he illegally possessed

a firearm. Id. at ¶ 19.

In the instant case, the trial court's conviction for having weapons

while under disability is a separate and distinct count, which is independent of the

grand theft count. The fact that the conviction is inconsistent with the jury's

acquittal of the grand theft count does not bar the conviction by collateral estoppel.

Accordingly, we overrule O'Malley's third assignment of error.

O'Malley's fourth and final assignment of error argues that the trial

court's restitution order of $200.00 is contrary to law. O'Malley argues that the

victim's economic loss is not a direct and proximate result of the commission of the

offense since he was acquitted of the grand theft charge for the firearm. We disagree.

We review of a trial court's order of restitution for an abuse of

discretion. State v. Maurer, 2016-Ohio-1380, 63 N.E.3d 534, ¶ 12 (8th Dist.). "R.C. 2929.18(A)(1) allows a court to impose an order of restitution to crime victims as

part of a criminal sentence.” State v. Kibble, 2017-Ohio-12, 80 N.E.3d 1066, ¶ 25

(8th Dist.). "Generally, restitution is limited to the actual economic loss suffered by

the victim that is the direct and proximate result of the crime for which a defendant

was charged and convicted.” Id., citing State v. Lalain, 136 Ohio St.3d 248, 2013-

Ohio-3093, 994 N.E.2d 423, ¶ 22-24. "A trial court is required to conduct a hearing

on restitution only if the offender, victim, or survivor disputes the amount of

restitution ordered.” Kibble at ¶ 31, quoting Lalain at ¶ 27.

The trial court convicted O'Malley of having weapons while under

disability in violation of R.C. 2923.13(A)(3), which means the court found that he

knowingly acquired, had, carried, or used Holstein's firearm. Therefore, as a direct

and proximate result of O'Malley's possession of Holstein's firearm, Holstein

suffered economic loss in the form of the dispossession of her 9 mm firearm.

Because neither O'Malley nor Holstein objected to the restitution amount at the

sentencing hearing, the trial court was not required to conduct a hearing on the

amount. Further, $200.00 was the amount of money that O'Malley offered to pay

Holstein in the Facebook messages to buy a new 9 mm firearm.

Based on the foregoing, we find the trial court's order for restitution

is not contrary to law because the economic loss suffered by the victim is the

proximate result of the crime for which O'Malley was convicted, namely the

possession of her 9 mm firearm. Therefore, we overrule O'Malley's fourth

assignment of error.

The judgment of the trial court is hereby affirmed.