STATE OF OHIO v. JERRY CABRERA
C.A. No. 13CA010434
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 4, 2014
[Cite as State v. Cabrera, 2014-Ohio-3372.]
COUNTY OF LORAIN; APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 12CR085829
WHITMORE, Judge.
{¶1} Defendant, Jerry Cabrera, appeals from the judgment of the Lorain County Court of Common Pleas. This Court affirms in part and reverses in part.
I
{¶2} While on patrol, Officer Kyle Gelenius, of the Lorain Police Department, performed a random check on the license plate of a Toyota Celica. Upon discovering that the plates had expired in April 2008 and were registered to a Buick, Officer Gelenius initiated a traffic stop.
{¶3} Officer Gelenius approached the driver, later identified as Cabrera, and requested his driver‘s license and proof of insurance. Cabrera admitted that his license was suspended, and Officer Gelenius requested he exit the car. Officer Gelenius immediately handcuffed Cabrera, with his hands behind his back, and walked him back to the police cruiser. According to Officer Gelenius, he then performed a field sobriety test, which Cabrera passed, and placed him in the
{¶4} After transporting Cabrera to jail, Officer Gelenius searched the back seat of his cruiser and discovered five white pills underneath the seat cushion near where Cabrera had been sitting. A laboratory test revealed that the pills contained hydrocodone, a controlled substance. Cabrera was indicted on: (1) tampering with evidence, in violation of
II
Assignment of Error
APPELLANT‘S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶5} In his sole assignment of error, Cabrera argues that his convictions for possession of drugs and tampering with evidence are against the weight of the evidence. Specifically, Cabrera argues that the evidence does not support a finding that he placed the pills in the back of the police cruiser.
{¶6} While Cabrera does not argue sufficiency, “a review of the weight of the evidence necessarily involves an evaluation of the sufficiency of the evidence in that, in order for this Court to weigh the evidence, there must be evidence to weigh.” State v. Tulk, 9th Dist. Lorain No. 12CA010310, 2013-Ohio-4279, ¶ 3, quoting State v. Frum, 9th Dist. Wayne No. 12CA0039, 2013-Ohio-1096, ¶ 4.
{¶8} “Whether the evidence is legally sufficient to sustain a verdict is a question of law.” Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955). This Court, therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354, 2008-Ohio-3721, ¶ 4 (9th Dist.).
Possession of Drugs
{¶9} Cabrera was indicted on possession of drugs in violation of
{¶10} Cabrera‘s indictment specifically stated that the drug involved was a schedule III, IV, or V drug. The State further alleged that Cabrera had a prior drug conviction, which elevated his possession charge to a felony of the fifth degree.
{¶11} The pills found in the back of Officer Gelenius’ cruiser were submitted to the county‘s crime laboratory for analysis. At trial, defense counsel stipulated to the authenticity and admissibility of the laboratory report, which identified the pills as hydrocodone, a schedule II drug. See
Tampering with Evidence
{¶12}
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.‘” (Emphasis sic.) Thompkins, 78 Ohio St.3d at 387, quoting Black‘s at 1594. “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder‘s resolution of the conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.
{¶13} Officer Gelenius testified that he initiated a traffic stop of a Toyota Celica because a random check on the license plate showed that the plates had expired in April 2008 and were registered to a Buick. The traffic stop was recorded on Officer Gelenius’ dash-camera and a copy of the recording was admitted into evidence at trial. Officer Gelenius testified that he approached the driver, later identified as Cabrera, and requested his driver‘s license and insurance information. Cabrera admitted that he did not have a valid driver‘s license, and Officer Gelenius requested that he exit the car. Officer Gelenius then handcuffed Cabrera, with his hands behind his back, and walked him back to the side of the police cruiser. According to Officer Gelenius, he then conducted a field sobriety test, which Cabrera passed, patted Cabrera down for weapons, and placed Cabrera in the back, passenger side of the cruiser. These actions took place out of the view of the camera. Officer Gelenius then returned to Cabrera‘s car to
{¶14} Once the inventory of the car was complete, Officer Gelenius returned to his cruiser to complete some paperwork. He then turned the camera to record Cabrera sitting in the back seat. The recording continues to show Cabrera until he exits the cruiser at the jail. The recording shows Cabrera making only a few, minor movements. Officer Gelenius testified that, immediately after he returned to his cruiser, he searched the back seat for any contraband, pursuant to “proper protocol,” and discovered five white pills underneath the seat where Cabrera was sitting.
{¶15} Officer Gelenius testified that he has exclusive use of his assigned police cruiser. He explained that his cruiser is a “take-home unit” and that he is “meticulous” about keeping the back seat clean. Officer Gelenius stated that he was certain that he searched the back seat at the start of his shift, including lifting the back seat and looking underneath. Officer Gelenius testified that Cabrera was the first person he placed in the back of his cruiser on that shift.
{¶16} Cabrera argues that the weight of the evidence does not support a conclusion that he put the pills underneath the seat. Cabrera asserts that he was handcuffed, with his hands behind his back, and was searched prior to being placed in the cruiser. However, Officer Gelenius testified that, in his pat down of Cabrera, he was searching for weapons, not pills. Officer Gelenius also testified that he did not know what Cabrera was doing while he was inventorying Cabrera‘s car. Further, Officer Gelenius stated that he had searched underneath the back seat at the start of his shift, the pills were found immediately after transporting Cabrera to
{¶17} While Cabrera was initially arrested for driving under suspension, he knew that he was going to jail when he was handcuffed and placed in the back seat of Officer Gelenius’ cruiser. Any illegal drugs possessed by Cabrera at the time he was admitted into the jail would likely have been discovered and investigated. Therefore, at the point that Cabrera was handcuffed and placed in the back of the police cruiser, the hydrocodone pills on his person were evidence of a “likely official investigation” and his actions of hiding them underneath the back seat was “intended to impair the value or availability of evidence related” to that likely investigation. See Straley, Slip Opinion No. 2014-Ohio-2139, at syllabus.
{¶18} After reviewing the entire record, weighing the evidence and all reasonable inferences, we cannot conclude that the trier of fact clearly lost its way and created such a manifest miscarriage of justice that Cabrera‘s conviction for tampering must be reversed and a new trial ordered. See Otten, 33 Ohio App.3d at 340. Accordingly, Cabrera‘s assignment of error, as it relates to his conviction for tampering with evidence, is overruled.
III
{¶19} Cabrera‘s sole assignment of error is sustained in part and overruled in part. The judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part, and the cause is remanded for the trial court to vacate Cabrera‘s conviction for possession of a schedule III, IV, or V drug.
Judgment affirmed in part, reversed in part, and cause remanded.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
KENNETH N. ORTNER, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.