STATE OF OHIO v. JAMIE W. BYRD
No. 98037
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 6, 2012
[Cite as State v. Byrd, 2012-Ohio-5728.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-548242
BEFORE: E. Gallagher, J., Boyle, P.J., and Celebrezze, J.
ATTORNEY FOR APPELLANT
Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Heights, Ohio 44118
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Andrew J. Santoli
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Jamie Byrd appeals from his convictions rendered in the Cuyahoga County Court of Common Pleas. Byrd argues that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. Byrd also argues that the trial court failed to properly advise him of postrelease control. For the following reasons, we affirm, in part, and reverse, in part.
{¶2} Byrd was indicted on March 21, 2011, and charged with two counts of drug trafficking in violation of
{¶3} The following facts were adduced at Byrd‘s jury trial.
{¶4} Upon receiving information from a confidential informant regarding alleged drug trafficking conducted by Jamie Byrd at a house located at 1408 West 77th, Detective Robert Klomfas of the city of Cleveland Division of Police contacted Byrd using an undercover vice drug phone. While law enforcement officers conducted surveillance at 1408 West 77th on March 10, 2011, Byrd returned Klomfas’ phone call and agreed to sell him $20 of crack cocaine.
{¶5} Cleveland police detective John Pitts observed Byrd leave the home in a gold Oldsmobile Cutlass. Byrd contacted Klomfas and changed the location of the drug buy to the area of Detroit and West 107th. Byrd was pulled over and arrested at an apartment building on West 107th and Detroit and the planned drug buy did not occur. The cellphone number that Klomfas had called to arrange the drug purchase with Byrd was found on Byrd‘s person. Lieutenant Louis Pipoly testified that Byrd admitted that he had a .380-caliber handgun in the home. No drugs were recovered on Byrd‘s person at the time of his arrest.
{¶6} A search of the home at 1408 West 77th uncovered a loaded .380-caliber
{¶7} Bank checking passports, identification and deposit slips were found in Byrd‘s padlocked room on the second floor of the residence. A bag containing one rock of crack cocaine and a box containing .380-caliber ammunition were discovered in Byrd‘s room. Also recovered from Byrd‘s room was $1,083 in cash as well as a bag of white powder that tested negative for narcotics. Erica Gates testified that she lived at 1408 West 77th with her five children, Byrd and Byrd‘s girlfriend. Gates and Byrd had been friends since childhood. She testified to directing Lt. Pipoly to the kitchen cabinet where the handgun and jar of crack cocaine were recovered. She testified that she does not use that cabinet that is high off the ground and that the cabinet was used exclusively by Byrd. Gates further testified that the jar of cocaine and gun belonged to Byrd.
{¶8} The jury returned a guilty verdict on one count of drug trafficking with a one-year firearm specification, drug possession with a one-year firearm specification and possessing
{¶9} Byrd‘s three assignments of error he raises for review state:
Assignment of Error I
The conviction was insufficient to convict defendant.
Assignment of Error II
The conviction was against the manifest weight of the evidence.
Assignment of Error III
The Court failed to instruct Jamie Byrd relative to post release control as mandated by law.
{¶10} Byrd argues that there was insufficient evidence to convict him of the crimes of drug trafficking, drug possession and possessing criminal tools. For the reasons stated below,
{¶11} This court has said, in evaluating a sufficiency of the evidence argument, courts are to assess not whether the state‘s evidence is to be believed but whether, if believed, the evidence against a defendant would support a conviction. 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. The weight and credibility of the evidence are left to the trier of fact. State v. Jackson, 8th Dist. No. 86542, 2006-Ohio-1938, ¶ 23.
{¶12} Byrd was convicted of a fifth-degree felony charge of drug trafficking in violation of
{¶13} Byrd was also convicted of a first degree felony charge of drug possession in violation of
(A) No person shall knowingly obtain, possess, or use a controlled substance.
* * *
(C)(4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The penalty for the offense shall be determined as follows: * * *
(e) If the amount of the drug involved equals or exceeds twenty-seven grams but is less than one hundred grams of cocaine, possession of cocaine is a felony of the first degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree.”3
{¶14} The drug trafficking and possession counts both contained one-year firearm specifications under
{¶15} Finally, Byrd was convicted of a fifth-degree felony charge of possessing criminal tools in violation of
(A) No person shall possess or have under the person‘s control any substance, device, instrument, or article, with purpose to use it criminally.
* * *
(C) * * * If the circumstances indicate that the substance, device, instrument, or article involved in the offense was intended for use in the commission of a felony, possessing criminal tools is a felony of the fifth degree.
{¶16} “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
{¶17} “Possession” may be either actual physical possession or constructive possession. State v. Jackson, 8th Dist. No. 97743, 2012-Ohio-4278, ¶ 38, citing State v. Haynes, 25 Ohio St.2d 264, 269-270, 267 N.E.2d 787 (1971). “Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within the individual‘s immediate physical possession.” State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus. Constructive possession may be established by circumstantial evidence. State v. Byrd, 8th Dist. No. 96352, 2011-Ohio-6268, ¶ 19.
{¶18} The elements of an offense may be established by direct evidence, circumstantial evidence, or both. State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674 (1991). Circumstantial and direct evidence are of equal evidentiary value. State v. Santiago, 8th Dist. No. 95333, 2011-Ohio-1691, ¶ 12.
{¶19} In the case sub judice, the testimony of detective Klomfas established each of the essential elements of Byrd‘s drug trafficking conviction in relation to his offer to sell crack cocaine to the detective.
{¶20} With respect to Byrd‘s convictions for drug possession and possessing criminal tools, the testimony of Gates as well as the testimony of the law enforcement officers, in
{¶21} This court does take issue, however, with the one-year firearm specification attached to Byrd‘s drug trafficking conviction. This court has previously held that the state may show a defendant has dominion or control over a weapon for purposes of
{¶22} This court has previously found sufficient evidence to support firearm specifications attached to drug possession counts in instances where the firearm is recovered in close proximity to the drugs. In Easterly, we upheld such a firearm specification where the defendant was arrested in one part of a building and drugs were found in the defendant‘s office and a gun was recovered from a box on the desk in the office. We rejected a sufficiency challenge in Easterly where the defendant argued that constructive possession of the firearm could not be established because he was not located near the gun when it was recovered. We
{¶23} In State v. Benton, 8th Dist. No. 82810, 2004-Ohio-3116, this court upheld a firearm specification attached to a drug possession charge where the defendant was arrested in his home and drugs and a firearm were found in his wife‘s car in a detached garage. The defendant admitted that the drugs and gun belonged to him but argued that he did not possess the firearm during the commission of the drug possession offense for the purposes of
“the underlying purpose of the gun specification [is] to deter possession or control of firearms during the commission of crimes due to the safety hazards such possession or control poses to the public and arresting officers.” Given that purpose, and in light of his admission that the gun belonged to him, it is apparent that Benton had sufficient control over the firearm during the commission of the underlying drug possession offense to pose a threat, if not to the arresting officers, to the public. (Citations omitted.)
Id. at ¶ 30, quoting State v. Mills, 10th Dist. No. 98AP-1273 (Sept. 28, 1999), citing State v. Powell, 59 Ohio St.3d 62, 63, 571 N.E.2d 125 (12th Dist.1991).
{¶24} Similarly, in the present instance, sufficient evidence exists to uphold Byrd‘s conviction for the firearm specification attached to his drug possession count. Byrd admitted to the officers at the time of his arrest that he possessed a .380-caliber handgun at the residence
{¶25} When viewing the evidence in a light most favorable to the prosecution, the testimony elicited at trial provided a reasonable trier of fact with all of the essential elements of each of the crimes for which Byrd was charged, with the exception of the one-year firearm specification attached to Byrd‘s drug trafficking charge.
{¶26} Byrd‘s first assignment of error is sustained, in part, and overruled, in part.
{¶27} When considering a manifest weight challenge, the court is concerned not with the burden of production, as with a sufficiency challenge, but rather the burden of persuasion.
{¶28} The weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The power to reverse a judgment of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶29} In challenging his convictions as against the manifest weight of the evidence, Byrd argues that the testimony of Erica Gates cannot be trustworthy because she accepted a plea to reduced charges stemming from the present incident in exchange for her testimony against him. We note that these facts, along with Gates’ prior felony conviction for fraud were examined by Byrd‘s attorney during the trial. Furthermore, while Gates’ testimony regarding Byrd‘s exclusive use of the kitchen cabinet wherein the 73 grams of crack cocaine were found
{¶30} After reviewing the entire record, weighing all of the evidence and considering the credibility of witnesses, we find that this was not the exceptional case where the “jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81. Byrd‘s second assignment of error is overruled.
{¶31} Byrd asserts that the trial court failed to properly advise him of postrelease control and argues that pursuant to State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, the trial court was required to separately inform him of the postrelease control requirements for each of the three counts for which he was convicted.
{¶32} We have previously rejected this precise argument and held that Saxon does not address the imposition of multiple periods of postrelease control. State v. Orr, 8th Dist. No. 96377, 2011-Ohio-6269, ¶ 46-50; State v. Morris, 8th Dist. No. 97215, 2012-Ohio-2498, ¶ 16-18.
{¶33} In Orr and Morris, we explained that
{¶34} Byrd‘s third assignment of error is overruled.
{¶35} Judgment affirmed in part and reversed in part. Case remanded with instructions to the trial court to vacate the conviction on the one-year firearm specification attached to Byrd‘s drug trafficking conviction.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR