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Date: 09-28-2018
Case Style:
STATE OF OHIO -vs- MYCHAEL MARTIN
Case Number: 17CA90
Judge: Patricia A. Delaney
Court: COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
Plaintiff's Attorney: GARY BISHOP
RICHLAND CO. PROSECUTOR
JOSEPH C. SNYDER
Defendant's Attorney: RANDALL E. FRY
Description:
This case arose on October 20, 2016 when a Mansfield Police Department
SWAT unit served a no-knock nighttime search warrant at the residence located at 512
West Third Street, Mansfield. Investigators with the METRICH narcotics unit targeted a
subject named Terrell Harris whom they believed to be selling narcotics at this address.
METRICH had in fact made a number of controlled buys of heroin from Harris at this
residence, including on October 20, 2016. The affidavit for the search warrant cited
evidence including mail addressed to Harris at 512 West Third Street.
Officer spots man with a gun
{¶3} Around 9:30 p.m. the SWAT unit descended upon the residence in an
armored vehicle. Officer Korey Kaufman was in the position of “point man,” providing
cover for the “breachers” who broke through the front door. It was Kaufman’s job to
ensure that the breachers were able to reach the door safely. As Kaufman stepped off
the armored vehicle, he observed a “backlit silhouette” in a southeast window which
appeared to be a slender individual with a large gun in his or her hand. Kaufman observed
the individual peering out a window through a space in the blinds and going back and
forth inside the residence.
{¶4} Kaufman yelled “Gun, gun, gun” to alert the rest of the unit. The commander
of the team ordered “abort” but the breachers didn’t hear the abort command and went
Richland County, Case No.17CA90 3
through the front door. It became imperative to the SWAT unit to clear the house as
quickly as possible and the entire team entered the residence.
{¶5} Kaufman was not involved in the apprehension of appellant, but he did note
that four people were found inside the residence: appellant, his sister, and his two children
under the age of 10. Kaufman testified that appellant’s sister and his children were not
tall enough to be the person he observed at the window and he testified appellant was
the person he saw with the gun. T.I, 54.
Appellant runs from southwest bedroom
{¶6} Officer Shane Gess was one of the breachers covered by Kaufman. He
entered the residence behind a shield and observed activity in the house through a
window on the shield. He saw a man turn away from him, running from the southwest
corner of the house. Gess ordered the man—appellant--to the ground. When appellant
was secured, Gess went into the bedroom appellant had come out of. He observed a
firearm which he described as a handheld pistol rifle; plastic baggies containing some
type of substance; and cash.
{¶7} Officer Chris Rahall was the affiant for the search warrant and was on the
SWAT unit that entered the residence. Once appellant was secured and his sister and
children were out of the house, Rahall was part of the METRICH team that went through
the house. He testified they were looking for drugs, money, and firearms, along with any
contraband that goes along with drug trafficking such as digital scales and plastic baggies.
The evidence-collection process consisted of photographing items where they were
found, then collecting them and placing them in plastic bags. Back at the METRICH
Richland County, Case No.17CA90 4
office, the plastic bags were opened and substances were weighed, sealed, and sent to
the crime lab.
Contraband found throughout the house, including southwest bedroom
{¶8} Appellee admitted the search warrant return as Exhibit 54. This exhibit
listed the contraband found in the residence, where it was found, and who found it. Rahall
testified to the items found, including: in the southwest bedroom, $1395 in U.S. currency,
white powder in two separate baggies found with a black Nike shoebox, two baggies of
suspected marijuana in a green plastic tote, and an AK-47 pistol with a magazine
containing nine rounds;1 in the living room, $440 in U.S. currency in an empty trash box
behind the couch and U.S. mail addressed to Terrell Harris on a T.V. stand; in the kitchen,
“tiny” Ziploc bags in a drawer (some bearing emblems of dollar signs, naked women, or
Nike symbols), a large orange bag of marijuana on the counter, another bag of marijuana
in a drawer, two digital scales including one covered in residue, and a box of plastic
sandwich baggies in a cupboard.
{¶9} The two plastic baggies of suspected cocaine were found on top of the black
Nike shoebox and Rahall acknowledged the bags were moved in order to open the box
and to photograph personal photos found inside the box. Appellant was identified in
several of the photos (and admitted they were his).
{¶10} Detective Perry Wheeler was also part of the METRICH team collecting
evidence. He testified that in addition to the items listed supra, several things were found
that weren’t seized, including children’s clothing, tennis shoes, and a child’s backpack, all
found in the southwest bedroom. The backpack contained a child’s school items.
1 The parties stipulated this was an operable firearm.
Richland County, Case No.17CA90 5
{¶11} The suspected cocaine was found about four feet away from appellant’s
two young children. Wheeler testified the house was so small that the children could not
have gone anywhere inside the house and been more than 100 feet away from illegal
drugs.
Evidence found typical of drug trafficking, per detective
{¶12} Wheeler testified baggies such as the ones found in the kitchen with the
various symbols are used to package drugs for sale. Typically firearms are found at drug
trafficking scenes because firearms are necessary to protect dealers’ investment.
{¶13} Wheeler further testified the residence at 512 West Third Street is a “trap
house,” a place where various people “post up” and sell drugs for a limited period of time.
The house exists merely as a place to sell drugs; the person selling there in the morning
may be different than the person selling there at night. Dealers use “trap houses” to avoid
seizure of their own personal property. It is common for multiple dealers to use a single
“trap house.” This house, Wheeler noted, contained very little furniture, and no food at
all.
{¶14} The fact that Terrell Harris sold drugs out of the “trap house” does not mean
Harris was the only person doing so. As Kaufman testified, the target of the search
warrant was the house itself.
Appellant’s DNA found on bag of marijuana
{¶15} Personnel of the Mansfield crime lab testified that the substances found in
the house included 24.75 grams of cocaine and, separately packaged, the following
amounts of marijuana: 1.91 grams, 27.6 grams, 20.7 grams, 182.3 grams, and 15.4
grams. One item was tested for DNA: one of two bags of marijuana found in the green
Richland County, Case No.17CA90 6
plastic tote in the southwest bedroom.2 A DNA profile was developed from the bag of
marijuana and it was found to contain a mixture of DNA. Appellant’s DNA profile matched
the major profile from the plastic bag of marijuana. Specifically, “[t]he probability that a
random individual would be included as a possible contributor to the DNA profile using
the loci available for statistical calculation is one in 63 billion.”
Defense case: appellant and his sister
{¶16} Appellant’s sister Mykeia Martin testified on his behalf. She lives on Penn
Avenue with appellant and their mother. On October 20, 2016, appellant asked her to
give him and his young sons a ride. On the ride, appellant asked to stop at the house at
512 West Third Street. Mykeia had never been to the house before and had no idea who
owned it. She testified that her brother wanted to stop there and one of her nephews
needed to use the bathroom so she took the children into the house.
{¶17} Mykeia further testified that appellant and his two sons were trying on White
Sox jerseys that appellant had just purchased. At 9:26 p.m., Mykeia snapped a picture
of appellant and his sons in the jerseys with their backs to the camera. As they started
to take the jerseys off, a light flashed outside and police broke the door down. Mykeia
said the four had been at the house for a total of about ten minutes before the SWAT
unit’s arrival.
{¶18} Police asked Mykeia whether she knew Terrell Harris and she said no. She
said “they wanted her to say” appellant was Terrell Harris, but she identified appellant as
2 Other items were not tested because the request for DNA testing came after the other bags had already been handled and analyzed by crime lab personnel. The firearm was not tested for DNA because it was not submitted in a sealed fashion and it was handled by crime lab personnel when it was removed from the evidence locker.
Richland County, Case No.17CA90 7
her brother Mychael Martin. No one else was present in the house. Appellant’s children
had a book bag and a shoebox with them. Mykeia never saw her brother with the firearm.
Upon cross-examination, she said she didn’t recall appellant entering the bedroom and
she had no idea whose house this was or what went on there. Jurors were permitted to
ask questions and asked how one child’s jersey ended up on the couch in the living room
and one ended up in the southwest bedroom; she had no explanation.
{¶19} Appellant testified on his own behalf. He acknowledged he is a convicted
felon with a prior conviction for cocaine possession and is prohibited from owning or
possessing a firearm. At the time of these events, he was living on Penn Avenue with his
mother and siblings.
{¶20} Earlier in the day on October 20, 2016, appellant had been “shooting dice”
and won $1000. He purportedly won most of the money from a single individual, who told
appellant he wanted some of his money back. The individual demanded “$700 or $1000.”
Appellant was willing to give some of the money back, but not all of it, because he needed
the money to take his kids to a hotel. Appellant agreed to give back $500 and the
individual agreed to let appellant and his kids stay at his place for two nights. Appellant
said he knows this person as “Shiz,” the house “Shiz” let him borrow was 512 West Third
Street, and appellant had never been there before.
{¶21} Appellant said “Shiz” Facetimed him earlier that day to show him the
location of a house key under a rock near the front door. Appellant said he picked up the
house key, went to his mother’s house, and asked his sister for a ride back to “Shiz’s”
house with his kids. Once inside the house, he gave his kids the new jerseys and his
Richland County, Case No.17CA90 8
sister took the photo. He told the kids to take the jerseys off and started to hook up a
video game.
{¶22} Appellant testified that as he was hooking up the video game, within ten
minutes of their arrival at the house, he had to use the bathroom and walked toward it.
He heard his sister say she saw a light outside and the cops broke down the front door.
Appellant knew it was police because he saw the SWAT shield. Appellant said he did not
run and immediately laid down in the hallway and officers cuffed him.
{¶23} Appellant said he never had a gun in his hand and he didn’t put the gun in
the southwest bedroom. He said he didn’t put the cocaine or the Superman backpack in
the bedroom, although the backpack belonged to one of his sons. He acknowledged that
he was pictured in the photos in the Nike box and admitted these were his personal photos
that he kept in the box.
{¶24} Defense trial counsel showed appellant photos of the inside of 512 West
Third and asked if any of the items belonged to him. Appellant said the television and
clothes in baskets weren’t his, but clothes on the couch, including White Sox jerseys,
were his. Appellant said a pair of Timberland boots on the floor was not his. Defense
trial counsel pointed out that in the photo of appellant and his sons taken at 9:26 p.m.,
appellant is wearing Timberland boots. Appellant said the pair on the floor was a different
pair, however. He said he put his own boots in a Nike box and changed into tennis shoes
because it was raining outside.
{¶25} Appellant claimed he originally planned to take his kids to a hotel to “hang
out” but when the house became available, he decided to take them there instead. When
asked why there was no food in the house, he said they ordered pizza.
Richland County, Case No.17CA90 9
{¶26} Appellant testified that he told police he doesn’t know Terrell Harris; he told
them the story about the dice game and the key under the rock. He claimed to know
nothing about the cocaine, gun, marijuana, scales, and baggies.
{¶27} When reminded by his counsel that his DNA was found on a bag of
marijuana, he said “yes, on the misdemeanor bag….” T. II, 285.
{¶28} On cross-examination, appellant acknowledged he told the police nothing
in the house would have his DNA on it. He said the currency found in the house was not
his. He acknowledged he told police he never entered the southwest bedroom; he
claimed one White Sox jersey and the child’s backpack were found there because police
moved the items. Appellant insisted he didn’t know anyone named Terrell Harris, but
acknowledged there are two people by the name of “Rell” in his phone. He acknowledged
his sister drove a blue Taurus that night, but claimed the Taurus was parked at the house
for only about ten minutes prior to the raid. Further, although he put his photos in the
Nike box, he did not put the box in the southwest bedroom. He acknowledged he handled
the box, and that the box was found under bags of cocaine, but insisted he didn’t handle
the cocaine and was unaware of it.
Appellee’s rebuttal
{¶29} Appellee recalled two officers on rebuttal. The first testified that appellant
also told them the story about the dice game and staying at “Shiz’s” house. When
appellant showed them his phone to recreate his Facetime conversation with “Shiz,”
however, the number came up under the name “Rell.” Appellant attempted to prevent
officers from seeing the name “Rell” on his phone. The second officer testified that the
house was surveilled prior to the execution of the search warrant; officers drove by several
Richland County, Case No.17CA90 10
times and saw the blue Taurus parked outside the house at least 45 minutes before the
raid took place. Officer specifically discussed the Taurus’ presence in their meeting prior
to the raid.
Indictment, trial, and conviction
{¶30} Appellant was charged by indictment as follows: Count I, trafficking in
cocaine in the vicinity of a school or juvenile pursuant to R.C. 2925.03(A)(2) and (C)(4)(e),
a felony of the first degree; Count II, possession of cocaine pursuant to R.C. 2925.11(A)
and (C)(4)(d), a felony of the second degree; Count III, trafficking in marijuana in the
vicinity of a school or juvenile pursuant to R.C. 2925.03(A)(2) and (C)(3)(c), a felony of
the third degree;3 Count V, having weapons while under disability pursuant to R.C.
2923.13(A)(3), a felony of the third degree; and Count VI, possession of marijuana
pursuant to R.C. 2925.11(A) and (C)(3)(c), a felony of the fifth degree. Counts I, III, and
V were accompanied by forfeiture specifications pursuant to R.C. 2941.1417.
{¶31} Appellant entered pleas of not guilty and the matter proceeded to trial by
jury. Appellant was found guilty as charged and sentenced to an aggregate prison term
of 17 years.
{¶32} Appellant now appeals from the judgment entry of his convictions and
sentence.
{¶33} Appellant raises five assignments of error:
ASSIGNMENTS OF ERROR
{¶34} “I. THE EVIDENCE IN THIS CASE WAS INSUFFICIENT AS A MATTER
OF LAW TO SUPPORT A CONVICTION OF TRAFFICKING COCAINE AND AS A
3 Count IV, a second count of having weapons while under disability, was dismissed.
Richland County, Case No.17CA90 11
RESULT, THE APPELLANT’S RIGHTS AS PROTECTED BY ARTICLE I SECTION 16
OF THE OHIO CONSTITUTION AND FIFTH AMENDMENT OF THE UNITED STATES
CONSTITUTION WERE VIOLATED.”
{¶35} “II. THE EVIDENCE IN THIS CASE WAS INSUFFICIENT AS A MATTER
OF LAW TO SUPPORT A CONVICTION OF POSSESSION OF COCAINE AND AS A
RESULT, THE APPELLANT’S RIGHTS AS PROTECTED BY ARTICLE I SECTION 16
OF THE OHIO CONSTITUTION AND FIFTH AMENDMENT OF THE UNITED STATES
CONSTITUTION WERE VIOLATED.”
{¶36} “III. THE EVIDENCE IN THIS CASE WAS INSUFFICIENT AS A MATTER
OF LAW TO SUPPORT A CONVICTION OF TRAFFICKING MARIJUANA AND AS A
RESULT, THE APPELLANT’S RIGHTS AS PROTECTED BY ARTICLE I SECTION 16
OF THE OHIO CONSTITUTION AND FIFTH AMENDMENT OF THE UNITED STATES
CONSTITUTION WERE VIOLATED.”
{¶37} “IV. THE EVIDENCE IN THIS CASE WAS INSUFFICIENT AS A MATTER
OF LAW TO SUPPORT A CONVICTION OF HAVING WEAPONS UNDER DISABILITY
AND AS A RESULT, THE APPELLANT’S RIGHTS AS PROTECTED BY ARTICLE I
SECTION 16 OF THE OHIO CONSTITUTION AND FIFTH AMENDMENT OF THE
UNITED STATES CONSTITUTION WERE VIOLATED.”
{¶38} “V. THE EVIDENCE IN THIS CASE WAS INSUFFICIENT AS A MATTER
OF LAW TO SUPPORT A CONVICTION OF POSSESSION OF MARIJUANA AND AS A
RESULT, THE APPELLANT’S RIGHTS AS PROTECTED BY ARTICLE I SECTION 16
OF THE OHIO CONSTITUTION AND FIFTH AMENDMENT OF THE UNITED STATES
CONSTITUTION WERE VIOLATED.”
Richland County, Case No.17CA90 12
ANALYSIS
I-V.
{¶39} Appellant’s five assignments of error are related and will be considered
together. Appellant argues his convictions are not supported by sufficient evidence.4 We
disagree.
{¶40} Sufficiency of the evidence is a legal question dealing with whether the state
met its burden of production at trial. State v. Murphy, 5th Dist. Stark No. 2015CA00024,
2015–Ohio–5108, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). “Specifically, an appellate court's function, when 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.” Murphy at ¶ 15. The test for sufficiency of
the evidence raises a question of law and does not permit the court to weigh the evidence.
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶41} 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. Murphy at ¶ 15, citing
Thompkins at 386.
4 Appellee points out that appellant did not make a motion for acquittal pursuant to Crim.R. 29(A) at the close of appellee’s evidence or at the close of all of the evidence. In State v. Brown, 5th Dist. Licking No.2006–CA–53, 2007–Ohio–2005 at ¶ 36, we noted failure to timely file a Crim.R. 29(A) motion during a jury trial does not waive an argument on appeal concerning the sufficiency of the evidence. State v. Nian, 5th Dist. Delaware No. 15CAA070052, 2016-Ohio-5146, ¶ 26, appeal not allowed, 148 Ohio St.3d 1411, 2017-Ohio-573, 69 N.E.3d 751. Thus, for purposes of this review, we do not consider appellant to have waived his right to argue sufficiency of the evidence on appeal. Id., citing State v. Lee, 5th Dist. Richland No. 15–CA–52, 2016–Ohio–1045, ¶ 30.
Richland County, Case No.17CA90 13
{¶42} The weight to be given the evidence introduced at trial and the credibility of
the witnesses are primarily for the trier of fact to determine. State v. Thomas, 70 Ohio
St.2d 79, 434 N.E.2d 1356 (1982), syllabus. It is not the function of an appellate court to
substitute its judgment for that of the factfinder. State v. Jenks, 61 Ohio St.3d 259, 279,
574 N.E.2d 492 (1991).
{¶43} Appellant argues appellee’s evidence in insufficient because he didn’t own
the house at 512 West Third Street; the investigation focused upon Terrell Harris; and
there is no direct evidence that appellant personally trafficked or possessed marijuana or
cocaine, or possessed the firearm.5 Appellee responds that reasonable inferences from
the evidence presented readily establish appellant’s guilt.
Trafficking
{¶44} We first address the trafficking offenses, Counts I and III. Appellant was
charged with trafficking cocaine and marijuana, pursuant in pertinent part to R.C.
2925.03(A)(2) which states, “No person shall knowingly * * * [p]repare for shipment, ship,
transport, deliver, prepare for distribution, or distribute a controlled substance or a
controlled substance analog, when the offender knows or has reasonable cause to
believe that the controlled substance or a controlled substance analog is intended for sale
or resale by the offender or another person.”
{¶45} Our review of the record indicates appellee presented ample circumstantial
evidence that appellant was guilty of the trafficking offenses. Ohio law recognizes that
circumstantial evidence is sufficient to prove the essential elements in a criminal
5 Appellant does not challenge the jury’s findings on the presence-of-a-juvenile or forfeiture specifications.
Richland County, Case No.17CA90 14
case. State v. Scott, 5th Dist. Morgan No. 06 CA 1, 2007-Ohio-303, ¶ 35, citing State v.
Willey, 5th Dist. Guernsey No. 98 CA 6, unreported, 1999 WL 3962 (Nov. 24, 1998),
internal citation omitted. “The only notable exception to this principle is where the
inference between the facts proven and the facts sought to be proven is so attenuated
that no reasonable mind could find proof beyond a reasonable doubt.” Id., citing State v.
Griffin, 13 Ohio App.3d 376, 377-378, 469 N.E.2d 1329 (1st Dist.1979).
{¶46} If the state relies on circumstantial evidence to prove an essential element
of an offense, it is not necessary for “such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.” Granados, supra, at ¶
27, citing Jenks, supra, 61 Ohio St.3d at 272, paragraph one of the
syllabus. “Circumstantial evidence and direct evidence inherently possess the same
probative value [.]” Jenks, 61 Ohio St.3d at paragraph one of the syllabus. Furthermore,
“[s]ince circumstantial evidence and direct evidence are indistinguishable so far as the
jury's fact-finding function is concerned, all that is required of the jury is that i[t] weigh all
of the evidence, direct and circumstantial, against the standard of proof beyond a
reasonable doubt.” Jenks, 61 Ohio St.3d at 272, 574 N.E.2d 492. While inferences cannot
be based on inferences, a number of conclusions can result from the same set of
facts. State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293 (1990), citing Hurt v. Charles
J. Rogers Transp. Co, 164 Ohio St. 329, 331, 130 N.E.2d 820 (1955). Moreover, a series
of facts and circumstances can be employed by a jury as the basis for its ultimate
conclusions in a case. Lott, 51 Ohio St.3d at 168, citing Hurt, 164 Ohio St. at 331.
{¶47} Appellee’s evidence is circumstantial but compelling. Kaufman observed
appellant with a firearm peering out the window of the house as the SWAT unit arrived,
Richland County, Case No.17CA90 15
supporting appellee’s characterization of 512 West Third Street as a “trap house” from
which appellant was actively trafficking cocaine and marijuana. Those drugs were found
in significant quantities throughout the house, along with evidence of drug distribution but
not of drug use. Officers testified that items such as firearms, scales, baggies, and large
amounts of currency are indicators of trafficking activity. Appellant’s story that “Shiz” let
him stay at the house temporarily, and that he didn’t know what went on there, is belied
by the fact that appellant was in the southwest bedroom where compelling evidence of
trafficking was found.
{¶48} Appellant cites State v. Collins in support of his contention that appellee
failed to establish he (1) prepared the drugs for shipment; (2) shipped, transported, or
delivered the drugs; (3) prepared the drugs for distribution; or (4) distributed the drugs.
State v. Collins, 8th Dist. Cuyahoga No. 95422, 2011-Ohio-4808, ¶ 20, cause dismissed,
130 Ohio St.3d 1414, 2011-Ohio-5604, 956 N.E.2d 306, citing State v. Hatcher, 8th Dist.
Cuyahoga No. 70857, unreported, 1997 WL 428656 (July 31, 1997). The facts of Collins
are distinguishable from the instant case. The state’s evidence against Collins consisted
of several controlled deliveries of packages of large amounts of marijuana, without more,
and the Court was unwilling to conclude that because Collins possessed a large amount
of marijuana, he was necessarily selling it. Id., ¶ 25. The Court reasoned:
The statute as written, however, indicates prospective
conduct that is particularized and not based on common assumptions. A
plain reading indicates that it requires an offender to take some action in
furtherance of the goal of accomplishing trafficking by doing one or more of
Richland County, Case No.17CA90 16
the proscribed acts under the statute. Receipt of drugs alone is not one of
the enumerated methods of violating the “preparation for shipment” statute.
Unless police can lay out the conspiracy to distribute drugs,
including details on the origin of the shipment, method of shipment, and
parties involved in the shipment (real or otherwise), in a manner designed
to prove the act of receipt is part of an overall drug conspiracy, the elements
that an offender prepares a drug for shipment, or ships a drug, or transports
a drug, or delivers a drug, or prepares for distribution a drug, or actually
distributes a controlled substance, when the offender knows or has
reasonable cause to believe that the controlled substance is intended for
sale or resale by the offender or another person, are not met by evidence
of receipt alone.
State v. Collins, 8th Dist. Cuyahoga No. 95422, 2011-Ohio
4808, ¶ 29-30, cause dismissed, 130 Ohio St.3d 1414, 2011-Ohio-5604,
956 N.E.2d 306.
{¶49} The instant case is distinguishable from Collins because there is evidence
of drug trafficking above and beyond receipt of a large quantity of drugs. METRICH was
actively investigating the house as a “trap house” from which drugs were sold, and the
contents of the house were consistent with a “trap house.” Typical house contents were
minimal, but evidence of a drug trafficking operation were unmistakable: in addition to
large quantities of cocaine and marijuana, police found currency, a firearm, baggies, and
scales, all of which are evidence of drug trafficking per officers’ testimony. The evidence
circumstantially established that Terrell Harris was known to appellant: although he
Richland County, Case No.17CA90 17
claimed he borrowed the house from “Shiz,” “Rell” was the name that appeared in
appellant’s phone, a fact he tried to conceal.
{¶50} The appellant in State v. Franklin made a similar argument, contending that
her mere presence in a residence where illegal drugs were located was insufficient as a
matter of law to support an inference of knowledge of the drugs and activities involving
drugs. State v. Franklin, 5th Dist. Stark No. 2007-CA-00022, 2007-Ohio-4649, ¶ 15, citing
State v. Cortez, 6th Dist. Lucas No. 05-1112, 2007-Ohio-96. The evidence in Franklin
consisted of testimony that the appellant sold crack to an informant, and appellant was
found in the kitchen of an apartment containing crack cocaine, marijuana, baggies, digital
scales, Chore Boys, and a glass crack pipe. Also in the apartment was “a large amount
of consumer goods still in unopened boxes, and plastic store bags containing clothing,
toiletries, and electronics,” which officers testified are often found in crack houses
because users and buyers of crack often lack cash and barter goods for drugs. We found
this to be sufficient evidence from which a reasonable trier of fact could conclude the state
presented evidence on each essential element of the offense of trafficking in cocaine. Id.
In the instant case, the trappings of drug trafficking were throughout the house, to the
extent that appellant’s children were within four feet of it. While there is no direct evidence
of appellant undertaking a sale, the extent of his personal property in the house, and his
apparent protective instinct over it, are strong circumstantial evidence.
{¶51} Appellee cites our decision in State v. Batin, 5th Dist. Stark No. 2004-CA
00128, 2005-Ohio-36, at ¶ 24, in which we found the jury could properly draw inferences
from the evidence:
Richland County, Case No.17CA90 18
In this case, the jury correctly inferred from the evidence that
appellant not only possessed the drugs but that he was also involved in the
preparation for shipment or distribution of drugs to facilitate drug trafficking
activity. The appellant's possession of a large amount of crack cocaine, both
cut and uncut, as well as his possession of a large sum of money permitted
the jury to draw the logical inference that he was involved in the distribution
of drugs. Likewise, the lack of any cocaine smoking paraphernalia on his
person at the time of his arrest suggested that the drugs he possessed were
not for personal use. See, State v. Jolly, 8th Dist. No. 70482, unreported,
1997 WL 391317 (July 10, 1997); State v. Gill, 1st Dist. Nos. C-950762, C
950806, unreported, 1997 WL 5181 (Jan. 8, 1997).
{¶52} Similarly, the jury in the instant case could draw the logical inference that
appellant was involved in the distribution of drugs. The record contains more evidence
than appellant’s mere proximity to patent evidence of drug trafficking—he was observed
by Kaufman with the firearm, and the logical inference is he was prepared to protect his
investment.
Possession of marijuana and cocaine, and having weapon while under disability
{¶53} Appellant argues his convictions for possession of marijuana and cocaine,
and the conviction of having weapons under disability, are not supported by sufficient
evidence because appellee failed to establish he knowingly “possessed” the drugs and
the firearm. Appellee responds that the evidence directly connected appellant to the
marijuana, cocaine, and firearm.
Richland County, Case No.17CA90 19
{¶54} Appellant was convicted of one count of possession of cocaine and one
count of possession of marijuana [Counts II and V]. R.C. 2925.11(A) states, “No person
shall knowingly obtain, possess, or use a controlled substance or a controlled substance
analog.” He was also convicted of one count of having a weapon while under disability
pursuant to R.C. 2923.13(A)(3), which states, “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 * * * [t]he person * * * has been convicted of any
felony offense involving the illegal possession, use, sale, administration, distribution, or
trafficking in any drug of abuse * * *.” Appellant’s premise is the same for all three
convictions: appellee failed to establish he knowingly possessed the drugs and the
firearm.
{¶55} R.C. 2925.01(K) defines possession as follows: “‘Possess' or ‘possession’
means having control over a thing or substance, but may not be inferred solely from mere
access to the thing or substance through ownership or occupation of the premises upon
which the thing or substance is found.” R.C. 2901.21 provides the requirements for
criminal liability and provides that possession is a “voluntary act if the possessor
knowingly procured or received the thing possessed, or was aware of the possessor's
control of the thing possessed for sufficient time to have ended possession.” R.C.
2901.21(D)(1). Possession may be actual or constructive. State v. Granados, 5th Dist.
Fairfield No. 13-CA-50, 2014-Ohio-1758, ¶ 25, citing State v. Butler, 42 Ohio St.3d 174,
176, 538 N.E.2d 98 (1989); State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d 787
(1971); State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus.
Richland County, Case No.17CA90 20
{¶56} To establish constructive possession, the evidence must prove that the
defendant was able to exercise dominion and control over the contraband. Granados,
supra at ¶ 26, citing State v. Wolery, 46 Ohio St.2d 316, 332, 348 N.E.2d 351 (1976).
Dominion and control may be proven by circumstantial evidence alone. Id., citing State v.
Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93 (8th Dist.2000). Circumstantial evidence
that the defendant was located in very close proximity to the contraband may show
constructive possession. State v. Butler, supra; State v. Barr, 86 Ohio App.3d 227, 235,
620 N.E.2d 242 (8th Dist.1993); State v. Morales, 5th Dist. Licking No. 2004 CA 68,
2005–Ohio–4714, ¶ 50; State v. Moses, 5th Dist. Stark No. 2003CA00384, 2004–Ohio–
4943, ¶ 9. Ownership of the contraband need not be established in order to find
constructive possession. State v. Smith, 9th Dist. Summit No. 20885, 2002–Ohio–3034,
¶ 13, citing State v. Mann, 93 Ohio App.3d 301, 308, 638 N.E.2d 585 (8th Dist.1993).
Furthermore, possession may be individual or joint. Wolery, 46 Ohio St.2d at 332. Multiple
individuals may constructively possess a particular item of contraband
simultaneously. State v. Pitts, 4th Dist. Scioto No. 99 CA 2675, 2000–Ohio–1986. The
Supreme Court has held that knowledge of illegal goods on one's property is sufficient to
show constructive possession. State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d
1362, (1982), cert. denied, 459 U.S. 870, 103 S.Ct. 155, 74 L.Ed.2d 130(1982).
Possession of the object must be “conscious,” i.e., a defendant must have knowledge of
the thing or substance which he is alleged to have possessed. Hankerson, 70 Ohio St.2d
at 91.
{¶57} “Whether a person acts knowingly can only be determined, absent a
defendant's admission, from all the surrounding facts and circumstances, including the
Richland County, Case No.17CA90 21
doing of the act itself.” State v. Zachery, 5th Dist. Stark No. 2008-CA-00187, 2009-Ohio
715, ¶ 20, citing State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695 (1st Dist.2001).
(Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a
subjective one, but it is decided on objective criteria.” Zachery, id., citing State v. Elliott,
104 Ohio App.3d 812, 663 N.E.2d 412 (10th Dist.1995).
{¶58} In State v. Thomas, 107 Ohio App.3d 239, 244, 668 N.E.2d 542 (5th
Dist.1995), we found sufficient evidence to support the jury’s finding that appellant
constructively possessed illegal drugs found in a briefcase, noting “[c]onstructive
possession requires the ability to exercise dominion or control over the object at
issue.” Id., citing State v. Boyd, 63 Ohio App.3d 790, 796, 580 N.E.2d 443 (8th Dist.1989).
We found Thomas had the ability to exercise dominion or control over the drugs because
he owned the briefcase in which the drugs were found.
{¶59} The instant case is similar to Thomas in several respects. In the briefcase,
officers found evidence linked to Thomas by its personal nature, akin to the personal
photos in the Nike box in the instant case, under the bags of cocaine. Appellant’s DNA
was admittedly found on “the misdemeanor bag” of marijuana, and that bag was adjacent
to other bags of marijuana. The evidence demonstrates the appellant's ability to exercise
dominion or control over the Nike box, as well as the items located on the box, including
the illegal drugs. Id. Furthermore, testimony at trial established appellant handled the
firearm as he looked out the window, then ran from the southwest bedroom when police
broke down the door. This evidence is sufficient to support an inference that appellant
had knowledge of the illegal drugs and the firearm and, therefore, knowingly possessed
them.
Richland County, Case No.17CA90 22
{¶60} The evidence of having a weapon while under a disability was direct.
Appellee entered a certified copy of appellant’s 2010 conviction for cocaine possession.
The offense of having a weapon under disability can be established by proving a
defendant “possessed” a firearm. Zachery, supra, 2009-Ohio-715 at ¶ 30. Constructive
possession of a firearm exists when a defendant knowingly has the power and intention
at any given time to exercise dominion and control over a firearm, either directly or through
others. Zachery, supra, 2009-Ohio-715 at ¶ 31, citing U.S. v. Clemis, 11 F.3d 597 (6th
Cir.1993), cert. denied, 511 U.S. 1094, 114 S.Ct. 1858, 128 L.Ed.2d 481.In this case,
officers testified there were four people in the house upon entry: appellant, his sister, and
his two young children. Kaufman observed the silhouette of a person holding the firearm
and testified it could only have been appellant. Like a portion of the drugs, the firearm
was found in the southwest bedroom appellant came out of.
{¶61} Viewing the evidence in the light most favorable to appellee, we conclude
that a reasonable person could have found beyond a reasonable doubt that appellant was
guilty of the trafficking and possession offenses, and of having a weapon while under
disability. We hold, therefore, that appellee met its burden of production regarding every
element of the crimes and, accordingly, there was sufficient evidence to support
appellant's convictions.
{¶62} The jury was free to accept or reject any and all of the evidence offered by
the parties and assess the witness's credibility. Zachery, supra, 2009-Ohio-715 at ¶ 36.
“While the jury may take note of the inconsistencies and resolve or discount them
accordingly * * * such inconsistencies do not render defendant's conviction against the
manifest weight or sufficiency of the evidence”. Id., citing State v. Craig, 10th Dist.
Richland County, Case No.17CA90 23
Franklin No. 99AP-739, unreported, 2000 WL 297252 (Mar. 23, 2000), internal citation
omitted.
{¶63} Appellant’s five assignments of error are overruled.
Outcome: Appellant’s five assignments of error are overruled and the judgment of the
Richland County Court of Common Pleas is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: