STATE OF OHIO, PLAINTIFF-APPELLEE, v. KELLY A. FOREMAN, DEFENDANT-APPELLANT.
CASE NO. 13-19-01
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
June 1, 2020
2020-Ohio-3145
ZIMMERMAN, J.
Appeal from Seneca County Common Pleas Court Trial Court No. 18 CR 0164
OPINION
Judgment Affirmed
APPEARANCES:
Adam Charles Stone for Appellant
Rebeka Beresh for Appellee
{1} Defendant-appellant, Kelly A. Foreman (“Foreman“), appeals the January 18, 2019 judgment entry of sentence of the Seneca County Court of Common Pleas. For the reasons that follow, we affirm.
{2} Foreman gave birth to J.B. on March 15, 2018. (Nov. 26, 2018 Tr. at 10). After J.B. exhibited symptoms of neonatal-abstinence syndrome, he was tested for the presence of illegal substances. (Id. at 12-13). J.B.‘s toxicology report revealed the presence of cocaine in his urine, cocaine in the umbilical-cord tissue, and cocaine, marijuana, amphetamines, and buprenorphine in his meconium. (Id. at 15). On July 25, 2018, the Seneca County Grand Jury indicted Foreman on one count of possession of cocaine in violation of
{3} The case proceeded to a bench trial on November 26, 2018. (Nov. 26, 2018 Tr. at 1). At the conclusion of all evidence, the trial court found Foreman guilty of the count of the indictment. (Doc. No. 24). On January 17, 2019, the trial court sentenced Foreman to three years of community-control sanctions. (Doc. No. 25).
{4} Foreman filed her notice of appeal on January 31, 2019. (Doc. No. 30). She raises two assignments of error for our review, which we will discuss together.
The trial court erred in denying the Appellant‘s Ohio Crim. R. 29 Motion to Dismiss because the court lacked jurisdiction over the State‘s case-in-chief as there was insufficient evidence presented in the record that Appellant ingested, used, controlled, or otherwise possessed Cocaine- either actually or constructively in Seneca County, Ohio in violation of R.C.§2925.11(A)(1)(c) [sic].1
Assignment of Error No. II
The evidence was insufficient as a matter of law, or alternatively the trial court ruled against the manifest weight of the evidence in finding that Appellant unlawfully possessed cocaine in violation of R.C.§2925.11(A)(1)(c) [sic] because there was no evidence presented in the record that Appellant ingested, used, controlled, or other wised possessed – either actually or constructively – in Seneca Count, Ohio and thus the Court lacked jurisdiction over the matter.
{5} In her assignments of error, Foreman argues that her possession-of-cocaine conviction is based on insufficient evidence and is against the manifest weight of the evidence. In particular, she contends that the State failed to produce sufficient evidence to establish Seneca County as the proper venue, and therefore, the trial court erred by denying her
{6} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). Thus, we address each legal concept individually.
{7} “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.” State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 102 (1997), fn. 4. See State v. Armengau, 10th Dist. Franklin No. 18AP-276, 2019-Ohio-1010, ¶ 14 (“Because a
{8} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine 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.‘” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court‘s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{9} Foreman was convicted of possession of cocaine in violation of
A person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
{10} “‘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.”
{12} Next, Megen Steyer (“Steyer“), a protective-services caseworker for Seneca County Job and Family Services, testified that she initiated an investigation after she was notified that J.B. was “born with illegal substances in [his] system.” (Id. at 20). As part of her investigation, Steyer interviewed Foreman during the time
{13} We first review the sufficiency of the evidence supporting Foreman‘s possession-of-cocaine conviction. State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999). Because it is Foreman‘s only argument on appeal, we review the sufficiency of the evidence supporting only whether the State produced sufficient evidence that she knowingly possessed cocaine in Seneca County.
{14} “Venue commonly refers to the appropriate place of trial for a criminal prosecution within a state.” State v. Potee, 12th Dist. Clermont No. CA2016-06-045, 2017-Ohio-2926, ¶ 22, quoting State v. Stone, 12th Dist. Warren No. CA2007-11-132, 2008-Ohio-5671, ¶ 16, citing State v. Meridy, 12th Dist. Clermont No. CA2003-11-091, 2005-Ohio-241, ¶ 12. Under
{15} “Although venue is not a material element of any criminal offense, it must nevertheless be proven at trial beyond a reasonable doubt, unless waived.” State v. Patterson, 3d Dist. Hancock No. 5-11-15, 2012-Ohio-2839, ¶ 73, citing State v. Draggo, 65 Ohio St.2d 88, 90 (1981). See also
{16} Viewing the evidence in a light most favorable to the prosecution, we conclude that the State presented sufficient evidence that Foreman knowingly possessed cocaine in Seneca County. A rational trier of fact could have found beyond a reasonable doubt that Foreman possessed the cocaine discovered in J.B.‘s umbilical cord, urine, and meconium, which were collected after his birth at Tiffin Mercy Hospital on March 15, 2018. See State v. Harris, 178 N.C.App. 723, 727, 632 S.E.2d 534 (2006) (holding that a “positive urine screen gives rise to the inference that defendant ingested cocaine“). Importantly, our sister appellate districts have concluded that it is of no consequence whether the controlled substance is discovered in a defendant‘s pocket or in any cellular matter expelled by his or her body. See State v. Scott, 8th Dist. Cuyahoga No. 63234, 1994 WL 173716, *3 (May 5, 1994) (“Whether that cocaine was in appellant‘s pocket or in his urine is of no effect.“), quoting State v. Shrimplin, 5th Dist. Knox No. 90-CA-32, 1991 WL 42504, *2 (Mar. 25, 1991). See also State v. McGowan, 8th Dist. Cuyahoga No. 63491, 1993 WL 311372, *2 (Aug. 12, 1993) (“The fact that the State did not find cocaine ‘on’ Appellant‘s person, does not negate the fact that the State found high levels of cocaine metabolites ‘in’ his person.“); State v. Napper, 3d Dist. Marion No. 9-91-11, 1991 WL 256521, *3 (Nov. 27, 1991); State v. Moyar, 3d Dist. Auglaize No. 2-06-10, 2006-Ohio-5974, ¶ 5, 17. But see Harris at 726 (holding “that a positive urine test, without more, does not satisfy the intent or the knowledge requirement inherent in our statutory definition of possession“). Thus, we conclude that the State presented sufficient evidence that Foreman possessed cocaine in Seneca County.
{17} Moreover, the State presented sufficient evidence that Foreman knowingly possessed cocaine in Seneca County. Indeed, Steyer testified that Foreman admitted that she used cocaine 6-to-12 times or every two-to-three weeks
{18} For these reasons, we conclude that the State presented sufficient evidence that Foreman knowingly possessed cocaine in Seneca County and the trial court did not err by denying her
{19} Having concluded that the State presented sufficient evidence that Foreman knowingly possessed cocaine in Seneca County, we next address Foreman‘s argument that her conviction is against the manifest weight of the evidence. Velez, 2014-Ohio-1788, at ¶ 76. Foreman contends that Steyer‘s testimony that Foreman‘s “fiancé did not know that she was using the cocaine as she would use it while he was at work,” “that she never used it in front of her children,” and “that she did not use it in her home in Green Springs” weighs against the conclusion that she knowingly possessed cocaine in Seneca County. (Nov. 26, 2018 Tr. at 23). However, based on our conclusion relative to Foreman‘s sufficiency-of-the-evidence arguments, the trier of fact did not clearly lose its way and create such a manifest miscarriage of justice that Foreman‘s possession-of-cocaine conviction must be reversed and a new trial ordered. In other words, the evidence that Foreman contends weighs against the conclusion that she knowingly possessed cocaine in Seneca County does not negate her admission to using cocaine coupled with the evidence of the cocaine that was discovered in the umbilical cord
{20} Foreman‘s assignments of error are overruled.
{21} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, J., concurs.
/jlr
WILLAMOWSKI, J., Dissenting.
{22} I respectfully dissent from the majority opinion because I disagree with the majority‘s conclusion that the State proved that venue was proper in Seneca County let alone proving it beyond a reasonable doubt. The majority concludes that venue is proper under
{24} To affirm this conviction, the majority insists that the mere presence of traces of a controlled substance in a person‘s system constitutes possession within the meaning of
{26} After examining this decision, I find it is important to note that, in reaching this position, the Fifth District did not bother to examine the statutory definition of “possession” in
{27} In Logan, the defendant was charged with underage possession of alcohol. Id. at 350. The prosecution presented evidence at trial that indicated that the police found the defendant in a state of intoxication. Id. at 351. However, the defendant argued that
the presence of alcohol in one‘s system does not constitute possession of that alcohol. [He] assert[ed] that once he had consumed the alcohol, he no longer had possession or control of the alcoholic beverage.
Id. at 352-353. Thus, he asserted that the State did not demonstrate that he possessed the alcohol in the county in which he was tried. Id. at 353.
{28} After examining the evidence in the record, the Fourth District very logically determined
that the presence of alcohol in appellant‘s system is circumstantial evidence of prior possession. * * * However, this evidence is not enough, without additional corroborating evidence, to prove prior possession beyond a reasonable doubt within the jurisdiction where the charges were brought. In the case sub judice, there was no such additional corroborating evidence adduced. The evidence demonstrated only that appellant‘s breath had an odor of alcohol and that the gaze nystagmus and intoxilyzer tests revealed that appellant was under the influence of alcohol. There was no other evidence adduced which would tend to show that appellant possessed the alcohol at a prior time in Hocking County.
{29} The Ohio Revised Code provides a definition for the word “possession.”
{31} However, “in a concealment case, the defendant ingests or otherwise inserts into the body a balloon, baggie, or similar container filled with an illegal substance. Rather than being assimilated into the bloodstream, the substance remains concealed in the body until retrieved or expelled.” Rudd, supra, at 873. Thus, if a person ingests a regulated substance in a manner that conceals it within the body, then control of that regulated substance is not put beyond human
{32} This definition also comports with the plain and legal meanings of the word “possession.” See Logan, supra, at 353, quoting The American Heritage Dictionary (2 College Ed. 1985) (the word “possess” is defined as “to gain or exert influence or control over.“); Black‘s Law Dictionary (6th Ed. 1991) (the word “possess” is defined “under narcotic drug laws [as] actual control, care and management of the drug. Defendant ‘possesses’ [a] controlled substance when defendant knows of substance‘s presence, substance is immediately accessible, and defendant exercises ‘dominion or control’ over substance.“). See People v. Rutledge, 250 Mich. App. 1, 6-7, 645 N.W.2d 333, 337-338 (Mich. App. 2002); Com. v. Pellegrini, 414 Mass. 402, 608 N.E.2d 717 (Mass. 1993), fn. 7; Lewis, supra, at 217.
{33} Thus, while the Fifth District issued a slapdash, conclusory statement without a supporting analysis in Shrimplin, the vast majority of jurisdictions that have engaged in a comprehensive legal analysis of the definition of possession in similar contexts have come to a conclusion that is fully consistent with this dissent. Logan, supra; Flinchpaugh, supra; Lewis, supra; Spann, supra; Rudd, supra; Franklin, supra; Thronsen, supra; Hornaday, supra; Vorm, supra; Evans, supra;
{34} The majority notes that not all of these precedents directly address the issue of venue. However, the case before this Court turns on the definition of possession. There is no venue in Seneca County under
{35} Unlike the case squarely before us, most of the precedents that the majority relies upon in order to find venue under
{¶36} The majority cites two other unreported decisions that merit further discussion. See State v. Scott, 8th Dist. Cuyahoga No. 63234, 1994 WL 173716, *3; State v. McGowan, 8th Dist. Cuyahoga No. 63491, 1993 WL 311372, *3, (Aug. 12, 1993). In Scott, the defendant was charged with violating
{¶37} In reaching this conclusion, however, the Eighth District did not examine the meaning of the word “possession” or consider the broader implications of the Fifth District‘s conclusory holding in Shrimplin. Id. Nonetheless, I ultimately find Scott‘s reliance on Shrimplin to be unfortunate because such reliance was
{¶38} In McGowan, the defendant was involved in a car accident in Cleveland at 8:00 P.M. McGowan, supra, at *1. A subsequent urine test revealed the presence of cocaine metabolites in McGowan‘s system. Id. On appeal, McGowan challenged his conviction, arguing (1) that his conviction was erroneous as a matter of law because it was based “upon an unquantifiable and uningestible [sic] amount of cocaine” and (2) that the State did not prove venue. Id. at *2. The majority quotes the following portion of McGowan: “[t]he fact that the State did not find cocaine ‘on’ Appellant‘s person, does not negate the fact that the State found high levels of cocaine metabolites ‘in’ his person.” Id. at *2. However, a careful and complete reading of McGowan reveals that this statement does not support the majority‘s definition of possession or its decision on the issue of venue under
{¶39} First, the Eighth District made the statement about cocaine being “‘in’ [McGowan‘s] person” in response to an argument McGowan made in his second
{¶40} In the case before this Court, the tests conducted on Foreman‘s infant child are clearly evidence that she had previously used cocaine at some point. Even more conclusive than this is her admission that she had previously used cocaine. This evidence establishes that she previously used cocaine for the purposes of establishing prior possession in violation of
{¶41} Second, McGowan does not define or address the issue of possession. In response to McGowan‘s argument, the Eight District stated that ”
{¶42} Third, as to the issue of venue, the Eight District, in McGowan, found venue under
{¶43} Based on the time of the accident and the testimony of the toxicologist, the Eight District held that the State presented some evidence that McGowan used cocaine in Cuyahoga County. Further, the court noted that McGowan‘s assertion that he used cocaine in Summit County was “self-serving.” Id. Since the evidence at trial established that McGowan used cocaine either in Summit County or in Cuyahoga County, the Eighth District held that McGowan could have been tried in Summit County or Cuyahoga County pursuant to
{¶44} I also believe that the broader implications of the majority‘s vast definition of “possession” are deeply problematic and merit exploration. Under the
{¶45} Consider the implications of the majority‘s definition of possession under
{¶47} Under the Fourth District‘s definition of possession, as stated in Logan,
{¶49} The majority is not troubled by this hypothetical, stating that cocaine, the regulated substance at issue in the case before this Court, cannot “legally be ingested in another jurisdiction.” Majority, supra. Thus, according to the majority, “there is no possibility that Foreman legally consumed the cocaine and is subsequently being prosecuted for her legal consumption of that substance.” Majority, supra. However, consider the case of a drug addict who lives in Indiana and regularly uses cocaine in that state. This person has possessed drugs that are illegal in Indiana and has cocaine residue in his system as the result of his illegal activities in that state.
{¶50} If this person came into Ohio while sober and did not have any amount of cocaine on his person or in his vehicle, he would be, under the majority‘s
{¶51} In Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417 (1962), the Supreme Court of the United States found a California law that criminalized drug addiction to be unconstitutional.4 In this decision, the Supreme Court recognized the broad powers of states to “regulate the narcotic drugs traffic within [their] borders * * *” Id. at 664. Pursuant to this power, “[a] State might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders.” Id. at 664-665. However, the Supreme Court held that, under the California law in question, “a person [could] be continuously guilty of this offense, whether or not he has ever used or possessed
{¶52} The Supreme Court ultimately “h[e]ld that a state law which imprisons a person thus afflicted [with the illness of drug addiction] as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment.” Id. at 667. See also City of Akron v. Neal, 9th Dist. Summit No. 11847, 1985 WL 10687, *1 (Apr. 17, 1985) (holding that, under Robinson, “the mere status of an individual as a drug addict cannot be made criminal” but that “the overt acts of an individual may constitute criminal behavior.“).
{¶53} In the situation of the drug addict who visits from Indiana, the majority‘s overreaching definition of possession would have the same effect as the law at issue in Robinson. Id. at 660-661. Under the majority‘s position, the State may establish a violation of
{¶54} In this regard, my reading of Robinson is an established and accepted interpretation. In dicta, the Second District of Illinois interpreted Robinson in a case where a pregnant woman gave birth to a baby. People v. Chatman, 297 Ill.App.3d 57, 696 N.E.2d 1159 (Ill. App. 1998).5 Subsequent testing revealed the presence of cocaine in the baby‘s system. Id. The court wrote that
[a]ccording to the prosecutor‘s own representations, the corpus delicti was “a blood test, with no other corroborating evidence.” This evidence could support a conviction only if the State could criminalize a person‘s mere status as a drug user without any proof that she committed an illegal act, such as possessing the cocaine, within the jurisdiction. This, however, is what Robinson [v. California, supra, at 370] * * * disallow[s].
* * *
As the State conceded at the trial level, it may not obtain convictions of cocaine possession merely by proving that defendant was a cocaine user or cocaine addict while she was within the jurisdiction. The State also conceded that its evidence to date—essentially, the test results—did not prove defendant possessed cocaine within the jurisdiction as the indictment charged. We agree with the parties and the trial court that this evidence would not support a conviction on any of the charges. It proves only that defendant “possessed” cocaine in her bloodstream
(Emphasis added.) Id. at 60.
{¶55} In interpreting
{¶56} Turning to the facts of the case before this Court, there is no question that Foreman is a drug user since she admitted to ingesting cocaine. While her
{¶57} However, the record indicates that the cocaine had been assimilated into Foreman‘s system long before she gave birth at a hospital in Seneca County. See Jackson v. State, 833 S.W.2d 220, 222-223 (Tex. App. 1992). The process of assimilation placed the cocaine beyond her ability to retrieve or control. Thus, Foreman, in the absence of any present or future ability to retrieve or control this illegal substance, was not in possession of cocaine as she gave birth in Seneca County. Since she was not in possession of cocaine at the time she gave birth, the State has not proved that she committed an element of the offense in Seneca County. Thus, I would hold that the State did not prove venue beyond a reasonable doubt under
{¶58} The majority also finds that the State established venue under
[w]hen it appears beyond a reasonable doubt that an offense or any element of an offense was committed in any of two or more
jurisdictions, but it cannot reasonably be determined in which jurisdiction the offense or element was committed, the offender may be tried in any of those jurisdictions.
{¶59}
{¶60} In Perkins, a woman was taken from a bar in Hancock County to a field where she was raped. Perkins at ¶ 11. The defendant then drove the woman to the place where she lived in Hancock County. Id. at ¶ 14. She did not remember leaving the bar but testified that the drive from the field to her house was “a couple minutes.” Id. at ¶ 14. The investigating officer testified at trial that there were several fields near to where the victim lived in Hancock County. Id. at ¶ 36. However, the investigating officer stated that he could not determine which precise field was the locus of the offense. Id.
{¶62} Similarly, in Stemm, a woman went to a steakhouse in Marysville, Union County. Stemm at ¶ 4. Later that evening, she thought she was getting a ride home with the defendant but woke up in a living room with the defendant. Id. at ¶ 5. The defendant then raped her and drove her to her ex-boyfriend‘s house. Id. The victim testified that she was raped about twenty to thirty minutes away from Marysville. Id. Further, she testified that she read signs on the trip to her ex-boyfriend‘s house that said “State Route 31” and “Mechanicsburg.” Id. at ¶ 5. The victim stated that the trip from the scene of the offense to her ex-boyfriend‘s house was roughly twenty minutes. Id. at ¶ 9.
{¶63} Based on the testimony at trial, this Court found that the State established that the offense happened within a twenty-minute radius of Marysville
{¶64} These precedents are distinguishable from the case before us because the State did not provide any evidence that establishes, beyond a reasonable doubt, that Foreman committed an offense in an identified vicinity that includes Ohio, let alone Seneca County. In this case, there is no evidence as to where this offense occurred. The State provided evidence that established that Foreman gave birth in a hospital in Seneca County. However, there is unequivocally no evidence that she had used, obtained, or possessed cocaine at that location. The State also provided evidence that established that Foreman lived in Green Springs, Seneca County. However, there is no evidence that she used, obtained, or possessed cocaine at her home. Her admissions state that she did not use cocaine at her home, in front of her children, or with the knowledge of her fiancé. Further, Foreman‘s statements do not admit that she possessed cocaine in her house in Green Springs.
{¶65} To find venue under
(1) “that she used cocaine 6 to 12 times throughout her pregnancy“; (2) that she used every two to three weeks during her pregnancy“; (3) “that she used a week and a half to week prior” to J.B.‘s birth; (4) “that her fiance did not know that she was using the cocaine as she would use it while he was at work“; (5) “that she never used it in front of her children” and (6) “that she did not use it in her home in Green Springs.”
(Emphasis added.) Majority, supra, quoting Tr. 22-23. Based on this testimony, the majority concludes that “Foreman‘s * * * admission proves beyond a reasonable doubt that Foreman knowingly possessed cocaine ‘in any of two or more jurisdictions.‘” Majority, supra, quoting
{¶66} These admissions (1) establish that Foreman obtained, used, and possessed cocaine somewhere and (2) establish several places where Foreman did not use cocaine. However, these admissions do not establish where she did obtain, use, or possess cocaine. In order to find venue through these admissions, the majority would have to inappropriately assume that Foreman obtained, used, or possessed cocaine in the vicinity of her home and that this offense, therefore, occurred in Seneca County or a neighboring jurisdiction. There was simply no evidence at trial that indicates that Foreman committed this offense in the vicinity of her home.
{¶67} I would agree that the fact that Foreman lived in Seneca County establishes a possibility that she may have possessed cocaine in or around that jurisdiction, but the State did not have the burden of establishing that it may have
{¶68} Beyond the presence of Foreman‘s residence in Seneca County, I do not see how her admissions involve
{¶69} In the absence of some evidence that tends to establish a vicinity in which the offense occurred, the majority‘s position appears to be resting on the jumbled logic that, if the offense did not occur in Seneca County, it occurred in another jurisdiction—therefore, jurisdiction exists under