STATE OF OHIO, Plаintiff-Appellee -vs- TIFFANI CAUTHON, Defendant-Appellant
Case No. 18-CA-41
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 9, 2019
2019-Ohio-1809
Hon. William B. Hoffman, P.J; Hon. John W. Wise, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDINGS: Appeal from the Fairfield Court of Common Pleas, Case No. 2017 CR 00074; JUDGMENT: Affirmed In Part and Reversed and Remanded In Part
For Plaintiff-Appellee
R. KYLE WITT
Fairfield County Prosecuting Attorney
BRIAN T. WALTZ
Assistant Prosecuting Attorney
239 West Main Street – Suite 101
Lancaster, Ohio 43130
For Defendant-Appellant
JAMES A. ANZELMO
446 Howland Drive
Gahanna, Ohio 43230
Hoffman, P.J.
{¶1} Appellant Tiffani Cauthon appeals the judgment entered by the Fairfield County Common Pleas Court convicting her of aggravated possession of drugs (
STATEMENT OF THE FACTS AND CASE
{¶2} At approximately 2:20 a.m. on September 8, 2016, Sgt. Timothy Bullock of the Ohio State Highway Patrol observed a vehicle driven by Appellant speeding. He further observed her weaving in her lane, and hitting her brakes to avoid striking a Pickerington police car from the rear.
{¶3} Sgt. Bullock stopped Appellant‘s car. Upon approaching the rear bumper of the vehicle, he could smell an overwhelming odor of burnt marijuana coming from the vehicle. Appellant was the sole occupant. Upon requesting her license, Appellant informed the officer she did not have a valid driver‘s license.
{¶4} Sgt. Bullock asked Appellant to step out of the vehicle. He could smell marijuana on her person. She reported there was no marijuana in the vehicle, and stated she was out at 2:20 in the morning to buy French fries.
{¶5} After placing Appellant in the rear of his cruiser, Sgt. Bullock searched the car. In the center console storage area by the driver‘s seat, he found three items stacked on top of each other and on top of the other items in the console: a plastic baggie containing marijuana, a work photo identification belonging to Appellant, and another
{¶6} Sgt. Bullock asked Appellant to perform field sobriety tests. She exhibited no clues on the horizontal gaze nystagmus test, which is designed primarily to determine if a persоn is under the influence of alcohol. He noted her eyes failed to converge, which indicates the usage of marijuana. On the walk and turn test, Appellant exhibited four clues. On the one-legged stand test, she exhibited one clue, and on the alphabet recitation test, she skipped over four letters.
{¶7} Appellant refused to submit to a urine test. She indicated to the officer she had to go home immediately, as she needed to be at work at 8:30 the same morning.
{¶8} Appellant was charged with aggravated possеssion of drugs, possession of marijuana, operating a motor vehicle under the influence of alcohol or a drug of abuse (OMVI), operating a motor vehicle without a license, and violation of lanes of travel on roadways. Following jury trial, the jury found her guilty of aggravated possession of drugs and OMVI, and the court found Appellant guilty of the remaining charges. She was sentenced to five years community control.
{¶9} It is from the August 7, 2018 judgment of conviction and sentence Appellant prosecutes this appeal, аssigning as error:
I. TIFFANI CAUTHON‘S CONVICTIONS FOR AGGRAVATED DRUG POSSESSION AND OPERATING A VEHICLE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS ARE BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION.
II. TIFFANI CAUTHON‘S CONVICTIONS FOR OPERATING A VEHICLE UNDER THE INFLUENCE OF DRUGS OR ALCOHOL AND AGGRAVATED DRUG POSSESSION ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION.
III. THE TRIAL COURT ERRED WHEN IT SENTENCED CAUTHON, IN VIOLATION OF HER DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION.
I., II.
{¶10} In her first and second assignments of error, Appellant argues her convictions for OMVI and aggravated possession of drugs are against the manifest weight and sufficiency of the evidence.
{¶12} An appellate court‘s function when reviewing the sufficiency of the evidence is to determine whether, after viewing thе 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. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991).
{¶13} Appellant was convicted of aggravated possеssion of drugs in violation of
“Possess” or “possession” means having control over a thing or substance, but may not be inferred solеly from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.
{¶14} Possession may be actual or constructive. State v. Butler, 42 Ohio St.3d 174, 176, 538 N.E.2d 98(1989). To establish constructive possession, the evidence must
{¶15} Appellant argues the evidence is insufficient to demonstrate she possessed the methamphetamine found in the center console, and the judgment finding she possessed the methamphetamine is against the weight of the evidence. She argues the evidence supports a finding she was using marijuana rather than methamphetamine. She argues she was not the only person with access to the car, as the car was rented in her friend‘s name, and they shared usage of the car.
{¶16} Appellant relies on State v. Kingsland, 177 Ohio App. 3d 655, 2008-Ohio-4148 (4th Dist. Adams). In Kingsland, police found chemicals used to make methamphetamine in the bed of a pickup truck, in which the defendant was a passenger, during a traffiс stop. The chemicals were partially concealed and the odor of the chemicals was not readily apparent. The Court of Appeals for the Fourth District found the evidence insufficient to demonstrate the defendant “should have or сould have known
{¶17} We find the instant case distinguishable from Kingsland. Appellant was driving the car and was its sole occupant. She admitted she had been using the car during the day, and she shared the car with her friend. Appellant told the officer the items in the back оf the car were items from her storage unit. The drugs were found in the center console of the vehicle, directly next to the driver‘s seat where Appellant had been seated. On top of other items in the console, the officer found three items stackеd directly on top of each other: marijuana which Appellant eventually admitted she knew was in the car, a work identification card with Appellant‘s picture on it, and the baggie containing methamphetamine. From this evidence, the jury could find Appеllant constructively possessed the methamphetamine. We find the judgment finding she possessed the drugs is not against the manifest weight of the evidence.
{¶18} Appellant was also convicted of OMVI in violation of
(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:
(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.
{¶20} Appellant offers several explanations for her poor performance on field sobriety tests. She acknowledges she admitted to using marijuana and violated traffic laws while driving, but argues the totality of the evidence negates a finding shе was impaired. She argues it is reasonable to conclude when asked to recite the alphabet from D through X, she misunderstood and therefore recited the alphabet from D through S, and did not skip from R to X as indicated by Sgt. Bullock. She argues she could not perform the walk and turn test because she was cold and shivering, and her refusal to take the urine test was not due to consciousness of guilt, but because she was under a time constraint.
{¶21} The jury heard the testimony of Sgt. Bullock and watched the video of the traffic stop, whiсh included the field sobriety tests. From the testimony at trial and the video, we find the jury did not lose its way in finding Appellant guilty of OMVI.
{¶22} The first and second assignments of error are overruled.
{¶23} In her third assignment of error, Appellant argues the court erred in sentencing her to a different sentence than the sentence pronounced from the bench.1
{¶24} In its judgment entry of sentencing, the court indicated if Appellant violated her community control on the possession of drugs charge, she could be incarcerated for six months to be served at the Ohio Reformatory for Women in Marysville, Ohio. However, during the sentencing hearing, the court stated if she violated community control, she could be sentenced to a six month term of incarceration at the Fairfield County Jail. Sent. Tr. 15.
{¶25} Crim.R. 43(A) provides the defendant shall be present at every stage of the trial, including at the imposition of sentence. Because the defendant‘s presence is required when the court imposes sentence, the trial court errs when its judgment entry of sentence differs from the sentence announced at the sentencing hearing in the defendant‘s presence. State v. Kase, 187 Ohio App.3d 590, 2010-Ohio-2688, 932 N.E.2d 990 (7th Dist. Belmont), ¶30.
{¶26} A difference between the sentence pronounced from the bench and the judgment of sentencing at times requires a remand for resentencing. See, e.g, Kase, supra (remanded fоr resentencing where court imposed a life sentence from the bench but life without possibility parole in entry); State v. Alvelo, 8th Dist. Cuyahoga No. 104422, 2017-Ohio-742, 85 N.E.3d 1032 (resentencing required where court imposed sentences in judgment entry on counts it failed to orally pronounce sentenсe on during hearing); State v. West, 9th Dist. Summit No. 27485, 2015-Ohio-2936 (resentencing required
{¶27} However, where it appears the discrepancy between the sentence pronounced in court and the entry is merely a scrivener‘s error, the court can correct the entry to reflect the sentence pronounced from the bench by a nunc pro tunc judgment. See, e.g., Alvelo, supra (court should issue nunc pro tunc entry to сorrect amount of restitution); State v. Vaughn, 8th Dist. Cuyahoga No. 103330, 2016-Ohio-3320 (trial court ordered to issue a nunc pro tunc order to correct the sentencing entry to reflect the sentence imposed at the sentencing hearing regarding firearm specifications).
{¶28} In the instant case, the record is not clear if the trial court intended any sentence imposed for violation of community control to be served in the Ohio Reformatory for Women in Marysville, or in the Fairfield County Jail. If the trial court‘s intention is a sentence for violation of community cоntrol be served in the Fairfield County Jail, the trial court is ordered to issue a nunc pro tunc order to conform the sentencing entry to the oral announcement of sentence. If the trial court‘s intention is a sentence for violation of community control be served in the Ohio Reformatory for Women, Appellant must be resentenced.
{¶29} The third assignment of error is sustained.
By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur