State v. BarronState v. Barron
Rendered on November 3, 2009
Ron O‘Brien, Prosecuting Attorney, and John H. Cousins, IV, for appellee.
David L. Engler and Mark G. Kafantaris, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Defendant-appellant, Christopher Barron (“appellant“), appeals from the judgment of the Franklin County Court of Common Pleas, convicting him after a bench trial of оne count of possession of drugs in violation of
{¶3} On October 1, 2007, Downard and Mauger arrived at the residence at approximately 3:15 p.m. and parked about 60 yards down the street. Within minutes of their arrival, Downard and Mаuger observed an “unidentified male black and a female black” walk out of the front entrance of Apartment J. The male sat down in a lawn chair in front of the apartment, while the female stood next to him. Then Downard and Mauger saw appellant exit the apartment and walk toward the broken-down vehicle.
{¶4} At the same time, they observed an unknown black male walk from an apartment across the street to meet appellant behind the broken-down car. The unknown male approached appellant with one hand in his pocket, whereupon both men briefly reached out their hands toward each other. The encounter lasted no more than two
{¶5} Following this encounter appellant walked over to the man and woman and spoke with them for a few moments and then walked into the apartment. No one followed him into the apartment and the front door was the оnly means of ingress and egress to the apartment. After observing the suspicious encounter between appellant and the individual who had come from across the street, Downard and Mauger decided to conduct a “knock and talk,” a police practice whereby officers approach an address, knock on the door, identify themselves, and attempt to speak to a suspect. At the same time that Mauger raised his fist to knock on the door of Apartment J, appellant opened the door as if he was on his way outside again. When the door opened, both officers smelled raw marijuanа. Downard and Mauger immediately identified themselves as Reynoldsburg police and asked appellant if he would like to talk. The man and woman who were situated outside the apartment immediately left the area. Appellant stated “that he didn‘t want * * * people knowing his business” and invited the officers inside. (Tr. 19.)
{¶6} As the door оpened further, Downard and Mauger saw a pistol-grip shotgun on the floor in front of them and a large bag of marijuana on the kitchen counter, which was 15 to 20 feet away from the door. They could also see a digital scale and a metal grinder on the counter. Appellant stood between the officers аnd the contraband. Upon seeing the shotgun, Downard asked appellant to put up his hands and, while Mauger performed a pat-down of appellant, Downard searched each room and closet of the
{¶7} Appellant told the officers that he did not rent the apartment. Mauger contacted the apartment manager, who informed him that the tenant wаs a woman named Jamelia Mauzy. Mauger contacted Mauzy, who was at work, and asked her to return home for questioning. When Mauzy arrived, she informed police that the shotgun belonged to her, but denied that the marijuana, scale or grinder were hers. She signed a consent form to allow the police to search the rest of the apartment.
{¶8} The police found a small baggie of marijuana and several empty clear plastic baggies, marijuana seeds in an ash tray, and metal screens typically used for smoking marijuana. According to Mauger, the presence of these items “indicated that there was possibly trafficking in marijuana in the apartment” since drug dealers often use a digital scale to “break the marijuana down in weight and then put it in the baggie for sale.” (Tr. 25-26.) A metal grinder is “usually used to remove some of the stems * * * from the marijuana so that you don‘t have stems either to sell or smoke.” (Tr. 27.) Downard had seen similar contraband in “hundreds” оf narcotics cases. (Tr. 22.) Laboratory testing demonstrated that the bags contained a total of 457 grams of marijuana. The items seized were tested for fingerprints, but no fingerprints were recovered. Other than the contraband that the officers attributed to appellant, police found nothing in Apartment J that belоnged to appellant.
{¶9} In an eight-page decision the trial court found appellant guilty as charged. Following a pre-sentence investigation, the court sentenced appellant to two years of
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DETERMINING THAT THERE WAS SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT POSSESSED MARIJUANA IN VIOLATION OF
R.C. 2928.11 [sic].
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT DURING SENTENCING BY GIVING UNDUE CONSIDERATION TO SUSPICIONS OF TRAFFICKING NEITHER CHARGED NOR PROVEN.
{¶10} In his first assignment of error, appellant maintains that the evidence was insufficient to prove that he possessed marijuana. “Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. Sufficiency is a test of adequacy. Id. We construe the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; State v. Conley (Dec. 16, 1993), 10th Dist. No. 93AP-387.” State v. Pilgrim, 10th Dist. No. 08AP-993, 2009-Ohio-5357, ¶24.
{¶11} Appellant was convicted of violating
{¶12} Possession of a controlled substance may be actual or constructive. State v. Saunders, 10th Dist. No. 06AP-1234, 2007-Ohio-4450, ¶10. A person has actual possession of an item when it is within his immediate physical control. Saunders; State v. Norman, 10th Dist. No. 03AP-298, 2003-Ohio-7038, ¶29. Constructive possession exists when a person knowingly exercises dominion and control over an object, even though the object may not be within the person‘s immediate physical possession. State v. Hankerson (1982), 70 Ohio St.2d 87, syllabus. Because the marijuana in this case was not found on appellant‘s person, the state was required to prove that he constructively possessed it.
{¶13} Circumstantial evidence alone may be sufficient to support the element of constructive possession. Jenks at 272-73. Absent a defendant‘s admission, the surrounding facts and circumstances, including the defendant‘s actions, constitute evidence from which the trier of fact can infer whether the defendant had constructive possession over the drugs in question. Norman at ¶31; State v. Baker, 10th Dist. No. 02AP-627, 2003-Ohio-633, ¶23. “Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reаsonable theory of innocence in order to support a conviction.” Jenks, paragraph one of the syllabus.
{¶15} Appellant argues that this case is like State v. Chandler (Aug. 9, 1994), 10th Dist. No. 94APA02-172, in which we reversed a conviction for attempted drug abuse because we determined the state had presented insufficient evidence that the defendant possessed the drugs in question. Appellant argues that this case is like Chandler because here, as in Chandler, appellant was convicted based solely upon his mere access to the drugs or his mere presence on the premises. We disagree. In Chandler, “[t]here was no evidence presented to establish that defendant was anything more than an observer of the [drug] activity” and “there was direсt evidence that someone other than defendant attempted to possess the drugs.” Id. In Chandler, police observed four men, including Chandler, huddled around a trash can lid that had crack cocaine resting on it. Police also found a homemade crack pipe about two feet from the trash can lid. One of thе four men (not Chandler) had put his left hand on the ground as soon as he saw police. In Chandler, all the defendant did was look at the drugs in question. The
{¶16} The evidence adduced at appellant‘s trial, howеver, when viewed in the light most favorable to the prosecution, is sufficient to prove that appellant was in constructive possession of the marijuana found in Apartment J. Appellant was the only person in the apartment at the time the marijuana was found, in plain view, merely 15 to 20 feet from where apрellant was standing. Police observed appellant freely enter and exit the apartment at will just before their discovery of the drugs. Moreover, in the moments between appellant‘s last exit from the apartment and his final return to the apartment, appellant engaged in some sort of exchange with аnother person, which one of the police officers described, based on his training and experience, as being indicative of a drug trafficking exchange. This evidence establishes far more than appellant‘s mere presence in the apartment or that appellant was a mere observer of drug activity, like the defendant in Chandler.
{¶17} For the foregoing reasons, we conclude that appellant‘s conviction is supported by sufficient evidence and we overrule his first assignment of error.
{¶18} In his second assignment of error, appellant argues that the trial court erred in sentencing appellant becаuse the court placed undue emphasis upon appellant‘s arrest for drug possession ten days after his arrest on the charge of which he was convicted in this case. The pre-sentence investigation revealed that on October 1, 2007, Downard and Mauger told appellant that they would come by his аpartment in ten days to take his fingerprints. When they arrived on October 11, 2007, appellant invited them in and they discovered 23 individually wrapped baggies of marijuana, totaling 64.8 grams. The pre-
{¶19} We note initially that, pursuant to
{¶20} Appellant argues that the trial court gavе him a harsher sentence than it would otherwise have because of its consideration of appellant‘s second arrest, though we observe that appellant was sentenced to two years of community control with 30 days of that time spent in jail, when he could have been sentenced to up to 12 months in prison.
{¶21} Here, the trial court appropriately and reasonably applied the sentencing guidelines. The trial court explained:
I‘ll try two years of community control. I want the next 30 days in the cоunty jail. During that time, I want a Netcare evaluation to find out what Mr. Barron‘s mental health issues are. And I want him to do without self-medication of marijuana for 30 days and see what that does to help his mental health.
(Sentencing Tr. 8-9.)
{¶22} Clearly, the trial court believed that appellant needed a mental health evaluation and imposеd a brief jail sentence in order to purge appellant‘s system of drugs and prevent further “self-medication.” The court also placed appellant in intensive supervision probation to further assist appellant in addressing his mental health and drug issues. This was a thoughtful and reasonable application of thе available sanctions.
{¶23} It is true that the trial court discussed appellant‘s arrest on October 11, 2007, for the drugs found in his own apartment. But “[i]n passing sentence, a judge may consider evidence that could not be presented at trial * * * [including] arrests for other crimes even where no conviction results.” State v. Mitchell (Sept. 25, 1984), 10th Dist. No. 83AP-556, citing State v. Downs (1977), 51 Ohio St.2d 47, 54, and State v. Burton (1977), 52 Ohio St.2d 21; see also State v. Daniel, 10th Dist. No. 05AP-564, 2006-Ohio-4627 (trial court may takе into consideration conduct of which defendant was charged and acquitted).
{¶24} In consideration of all of the foregoing, and upon a thorough review of the record and the parties’ arguments, we conclude that the record supports appellant‘s sentence and that the sentence is not сontrary to law. For this reason, appellant‘s second assignment of error is overruled.
Judgment affirmed.
BROWN and CONNOR, JJ., concur.
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