Facts
In 2003, Patrolman Charles White of the Cleveland Police Department responded to a dispatch call to investigate a disturbance at 928 Church Street, the home of Anthony Short‘s girlfriend, Patricia Jones. Jones had called the police saying that Short had left her house and threatened to return with a gun. As White proceeded north on Church Street, he observed a parked car facing southwest in the yard of 928 Church Street.
The driver’s side door was opened and a man, Short, was stooped over and reaching under the driver’s seat. The car was later determined to belong to Short’s other girlfriend, Shirley Ramsey. Officer Ronald Levingston arrived. The officers approached the car and asked Short if he had a gun. Short denied having a gun and the officers told Short to leave.
At first, Short said he had no keys to the car and declined to leave. Then, Short departed on foot but returned momentarily. At some point, Officer Douglas Tribble arrived. Short began cursing at the officers, who placed him under arrest for public profanity. The officers searched Short incident to his arrest and discovered the car keys in Short’s pocket. Jones requested that the car be towed from her property.
Officer Tribble and Patrolman White performed an inventory search of the car incident to the towing. Tribble found a .380 Bryco handgun under the driver’s seat. No ammunition for the gun was located.
Jones testified that she and Short were in the midst of an argument when Short left to get a gun from his car. Jones stated that, when Short left the house, she looked outside and saw him putting a clip into the gun, prompting her to call the police. Jones also stated that, previously, she had seen Short with the gun and that Short always stored the gun under the driver’s seat of the car. Jones testified that, when he visited her, Short usually drove Ramsey’s car.
Investigator Robert Graham interviewed Short. In his statement, Short told Graham that he had obtained the handgun through a pawn arrangement. The previous month, Daryl Hawkins had pawned the gun to Short in exchange for $45. Short had expected to return the gun to Hawkins when Hawkins repaid the $45. Short told Graham that he had been aware that, as a convicted felon, he was not supposed to be in possession of a firearm but stated that he had not planned on being caught with the handgun. Short told Graham that Jones had placed the gun under the driver’s seat.
Short’s trial testimony differed from his prior statement. At the trial, Short admitted that Hawkins had pawned the gun to Short in exchange for $45. However, Short maintained that he had never touched the gun. Short testified that he instructed his friend, Tyrone Walker, to bring the gun to Jones’s house for storage since Ramsey would not tolerate having a gun in her house.
Short said that Walker brought the gun to Jones’s house and, on February 10, Short went to Jones’s house to retrieve it in order to return it to Hawkins and get his money back. Short testified that Jones had not wanted to give him the gun, that they argued, and that Jones told him she had placed the gun under the driver’s seat. Short stated that he went outside and was about to retrieve the gun when the police arrived. However, he said he was surprised when the police found the gun under the driver’s seat.
Short was convicted of being a felon in possession of a firearm and sentenced to three years. MCOA affirmed on the possession but remanded the case for a re-sentencing issue.
Analysis
In Gavin, we said for constructive possession, there must have been sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular item and was intentionally and consciously in possession of it. Constructive possession may be established with proof that the item was under the defendant’s dominion or control.
As recognized by the trial court, there was sufficient evidence of at least three bases for the finding that Short possessed the handgun.
Firstly, a reasonable jury could have found actual possession from Jones’s testimony that she saw Short holding and loading the gun before the police arrived.
Secondly, the jury reasonably could have found that Short was in constructive possession of the handgun from Jones’s testimony that Short had previously shown her the gun and that he always kept it under the driver’s seat, along with Patrolman White’s testimony that he saw Short reaching under the driver’s seat.
Thirdly, a reasonable jury could have found that Short exercised dominion and control over the handgun from Short’s own testimony that he paid $45 for the gun and directed another person as to what to do with the gun. The credibility of Jones’s testimony was a matter for the jury to resolve.