STATE OF OHIO v. CARVILLIA J. GILBERT, JR.
C.A. No. 11CA0076-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF MEDINA
September 10, 2012
2012-Ohio-4090
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 10-CR-0478
MOORE, Presiding Judge.
{¶1} Appellant, Carvillia Gilbert, appeals the judgment of the Medina County Court of Common Pleas. This Court affirms.
I.
{¶2} In the early morning hours of September 15, 2010, Lester Javey was driving a car headed north on Interstate 71, traveling from Columbus to Youngstown. Carvillia Gilbert was in the front passenger seat. Javey and Gilbert were the only two people in the car. Around 1:30 a.m., Medina County Deputy Paul Schismenos noticed the car driven by Javey did not have a functioning rear license plate light as required by law. Deputy Schismenos conducted a traffic stop and approached the passenger‘s side to obtain license, registration and insurance information. Deputy Schismenos testified that he became suspicious when Gilbert appeared nervous. Deputy Schismenos testified that in his experience when a passenger in a car becomes nervous, there is usually more than just a traffic violation going on. Deputy Schismenos showed
{¶3} During this time, Deputy Kohler arrived with his canine unit. Upon circling the vehicle, the dog alerted Deputy Kohler to the odor of narcotics at the driver‘s side door. The officers then placed Gilbert in the back of Deputy Schismenos’ cruiser with Javey while they conducted a search of the car. Deputy Schismenos’ police car was equipped with a dashboard camera, which records both audio and video. An audio recording was made of Javey and Gilbert talking to each other during the search while they were sitting in the back of the police car.
{¶4} Both deputies testified to a strong odor of raw marijuana in the passenger compartment, and to finding what they believed to be marijuana residue in the cup holder. The deputies also testified to finding an open package of cigarillos, which, according to the officers, are often used to smoke marijuana. In the trunk the deputies found approximately two pounds of marijuana. The drugs were packaged in two one gallon Ziploc bags, which were wrapped in a black trash bag and hidden under a winter jacket. A partial fingerprint found on one of the Ziploc bags did not match Gilbert or Javey, and both men denied ownership of the marijuana. The car belonged to a Tonya Jennings of Youngstown. No mention was made of how the car came to be in the possession of Gilbert and Javey.
{¶5} Gilbert was charged with one count of possession of marijuana in violation of
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING MR. GILBERT‘S MOTION FOR A JUDGMENT OF AQUITTAL (sic) UNDER CRIMINAL RULE 29 AT THE
{¶6} In his first assignment of error, Gilbert argues that the trial court erred when it overruled his motion for judgment of acquittal. Specifically, Gilbert argues that there is insufficient evidence to support his conviction. We disagree.
{¶7}
{¶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.).
{¶9} Gilbert was convicted of one count of possession of drugs in violation of
{¶10} “‘[P]ossession’ means having control over a thing or substance * * *.”
{¶11} “Possession of a drug includes possessing individually, or jointly with another person. Joint possession exists when two or more persons together have the ability to control an object, exclusive of others.” State v. Figueroa, 9th Dist. No. 22208, 2005-Ohio-1132, ¶ 8, quoting State v. Alicea, 8th Dist. No. 78940, 2001 WL 1243944, *16 (Oct. 18, 2001).
{¶12} Gilbert argues that there is insufficient evidence to allow a reasonable juror to conclude that he had constructive possession of the marijuana found in the trunk. Specifically, Gilbert argues that the car did not belong to him, he was not driving, and he did not have keys to the car. Further, Gilbert argues, the police found no evidence of drugs or drug paraphernalia on his person and there was no evidence that Gilbert had accessed the trunk or the drugs. In
{¶13} However, the State did present evidence that could support a finding of joint possession. Although the car did not belong to Gilbert or Javey, the two had exclusive control over the car and everything inside. The two were pulled over about an hour and a half into their trip from Columbus to Youngstown. Deputy Dan Kohler testified that the odor of raw marijuana inside the passenger compartment was “overwhelming.” At trial, the State played a portion of the audio recordings of Javey and Gilbert talking to each other in the back of the police car while the deputies were conducting the search of the car. While the audio in places is somewhat difficult to decipher, several statements made by Gilbert support a conclusion that he knew about the drugs and was involved in their transport.
{¶14} In the tape when the drugs are discovered, Gilbert can be heard opining about how strange it was that a car pulled out at the same time as theirs. When Javey offers his thoughts, Gilbert admonishes him not to talk because he knows that cruisers have listening devices. Notwithstanding his own advice, he continues to muse about the traffic stop, that something is not quite right, but he can‘t put his finger on it. As the officers continue the search, (without any information having been communicated to him about the type of drugs discovered in the trunk) he concludes “they want more than weed“. He continues to speculate about a car that slowed up, an apparent reference to either an undercover vehicle, or someone who might have alerted the police to their presence. At one point, he asked “who knew we was comin’ down here?”
{¶15} The totality of the circumstances established that Gilbert had knowledge of marijuana in the trunk and was in joint possession of the car and its contents; Javey and Gilbert
ASSIGNMENT OF ERROR II
MR. GILBERT‘S CONVICTION OF POSSESSION OF DRUGS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶16} In his second assignment of error, Gilbert argues that his conviction is against the manifest weight of the evidence. Specifically, Gilbert argues that the weight of the evidence supports the finding that he did not have dominion or control over the drugs in the trunk. We disagree.
{¶17} A conviction that is supported by sufficient evidence may still be found to be against the manifest weight of the evidence. Thompkins at 387; Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. “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 at 387, quoting Black‘s at 1594.
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). “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. An appellate court must give deference to the jury‘s evaluation of the evidence and credibility of witnesses. State v. Ali, 9th Dist. No. 18841, 1998 WL 597654, *5 (Sept. 9, 1998). An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. State v. Prade, 139 Ohio App.3d 676, 696 (9th Dist.2000).
{¶18} Deputy Schismenos testified that Gilbert‘s demeanor caused him to become suspicious, in that his nervousness seemed to signal something more than that normally associated with a traffic stop. Deputy Kohler testified that the smell of the raw marijuana in the passenger compartment was “overwhelming.” The police further testified that they found what they believed to be marijuana residue (or “shake“) in the cup holder. Deputy Kohler testified about finding an open package of cigarillos, which, according to Deputy Kohler, are often used to smoke marijuana.
{¶19} The weight of the evidence supports the finding that Gilbert had joint possession of the marijuana in the trunk. Gilbert had been travelling for over an hour and a half in a car with a “strong” and “overwhelming” smell of marijuana. During the search of the car, Gilbert tells Javey that the police “want more than weed” and to not say anything because police cruisers are equipped with listening devices. Gilbert did not present any evidence at trial to rebut the evidence that he and Javey had control over the car and the drugs, exclusive of others. The weight of the evidence supports a finding that Gilbert had knowledge of the marijuana in the trunk and was in joint possession of the car and its contents.
{¶20} Moreover, there is evidence that could allow a reasonable juror to conclude that Gilbert was the one in charge. The police also found $595 in cash on Gilbert, and $69 on Javey. In the audio recording of Javey and Gilbert talking to each other in the police car, Gilbert told Javey not to say anything because the police will be recording their conversations. Gilbert goes on to speculate that they had been set up. Javey can be heard mumbling in agreement. At one
{¶21} Taking the evidence in its totality and giving the jury its due deference, we cannot conclude that this is the exceptional case that requires reversal. Accordingly, Gilbert‘s second assignment of error is overruled.
III.
{¶22} Gilbert‘s assignments of error are overruled and the judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, 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.
CARLA MOORE
FOR THE COURT
CARR, J.
DICKINSON, J.
CONCUR.
APPEARANCES:
MICHAEL J. ASH, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting Attorney, for Appellee.