STATE OF OHIO v. ERNEST HARRIS
Nos. 98183 and 98184
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 14, 2013
[Cite as State v. Harris, 2013-Ohio-484.]
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CR-552372 and CR-554394
BEFORE: S. Gallagher, J., Stewart, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: February 14, 2013
Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Vincent I. Pacetti
James M. Price
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} In this consolidated appeal, appellant, Ernest Harris, appeals his conviction in the Cuyahoga County Court of Common Pleas for several drug-related offenses. For the reasons stated herein, we affirm.
{¶2} Appellant was charged with numerous drug-related offenses in the two underlying cases, which were joined for trial. The cases arose from incidents occurring on March 29 and September 9, 2011, at appellant‘s home locatеd at 12826 Marston Avenue in Cleveland.
{¶3} On March 29, 2011, Detective John Hall and members of the Cleveland Police Department Fourth District Vice Unit, along with the SWAT unit, executed a search warrant at appellant‘s home. Det. Hall testified that appellant and three other people were present in the home. Det. Hall discovered a glass tube with burnt crack cocaine residue on a bar in appellant‘s bedroom, as well as small pieces of “chore boy,” which is used to facilitate smoking crack cocaine. These items were found in plain view. A utility bill addressed to appellant was also found in this room. The room was secured with a padlock.
{¶4} On September 9, 2011, the police did a controlled buy of crack cocaine at appellant‘s home with the use of a confidential reliable infоrmant (“CRI“). Det. Luther
{¶5} Ultimately, appellant was found guilty in Cuyahоga C.P. No. CR-552372 on charges of drug possession (
{¶7} Initially, we note that it appears from the record that appellant failed to move for severance pursuant to
{¶8} Under
{¶9} A defendant claiming the trial court erred in joinder of offenses for trial has the burden of demonstrating that his rights were prejudiced and that the court abused its discretion in denying severance. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,
{¶10} Appellant claims that joinder was improper in this action because of the danger that the jury would use evidence of one alleged incident as evidence supporting the other. We are unpersuaded by appellant‘s argument. Unlike the case relied upon by appellant, this is not a case involving sexual conduct with evidence that is highly inflammatory and prejudicial in nature. See State v. Schaim, 65 Ohio St.3d 51, 600 N.E.2d 661 (1992). A jury is believеd capable of segregating the proof on multiple charges when the evidence as to each of the charges is uncomplicated. State v. Torres, 66 Ohio St.2d 340, 343-344, 421 N.E.2d 1288 (1981). As such, joinder is not prejudicial when the evidence is direct and uncomplicated and can reasonably be separated as to each offense. Id.
{¶11} Here, the offenses in each case pertained to drug-related activity in the appellant‘s home, at which the police executed search warrants on two separate occasions. The offenses were of the same or similar character and were part of a course of criminal conduct. Further, the evidence was direct and uncomplicated as to each
{¶12} Upon our review, we find the trial court did not abuse its discretion by joining the cases for trial. Accordingly, appellant‘s first assignment of error is ovеrruled.
{¶13} Appellant‘s second assignment of error claims the trial court erred by failing to properly instruct the jury regarding the law of constructive possession. We review a trial court‘s issuance of a jury instruction for an abuse of discretion. State v. Williams, 8th Dist. No. 90845, 2009-Ohio-2026, ¶ 50. Further, jury instructions are reviewed in their entirety to determine if they contain prejudicial error. State v. Fields, 13 Ohio App.3d 433, 436, 469 N.E.2d 939 (8th Dist.1984).
{¶14} The court provided the following instruction on constructive possession:
Constructive possession is also sufficient to prove possession. Possession may not be inferred from mere access to the thing or substanсe; however, a person constructively possesses a thing or substance when he knowingly exercises or is able to exercise dominion and control over the thing or substance or over the premises on which the thing or substance is found or concealed, even though the thing or substance is not in his physical possession.
Knowledge of illegal goods on one‘s property is sufficient to show constructive possession. However, the mere fact that property is located within premises under one‘s control does not, of itself, constitutе constructive possession. It must also be shown that the person was conscious of the presence of the object.
{¶16} Constructive possession can be proved by circumstantial evidence alone. State v. Alexander, 8th Dist. No. 90509, 2009-Ohio-597, ¶ 25; State v. Trembly, 137 Ohio App.3d 134, 141, 738 N.E.2d 93 (8th Dist.2000). Although the mere presence of an individual in the vicinity of illegal drugs is insufficient to establish constructive possession, if the evidence demonstrates that the defendant was able to exercise dominion or control over the drugs, the defendant can be convicted of possession. State v. Tate, 8th Dist. No. 93921, 2010-Ohio-4671, ¶ 12, citing Wolery at 329. Thus, the discovery of readily accessible drugs in close proximity to a person constitutes circumstantial evidеnce that the person was in constructive possession of the drugs. Tate at ¶ 12.
{¶17} Appellant claims that the instruction given herein allowed the jury to find constructive possession simply if the defendant was “able” to exercise dominion and control. He further argues that the instruction allows for a conviction if one merely had dominion and control over the premises on which the substance is found and improperly
{¶18} This court has repeatedly rеcognized that constructive possession can be established by knowledge of an illegal substance or goods and the ability to exercise dominion or control over the substance or the premises on which the substance is found. State v. Santiago, 8th Dist. No. 95333, 2011-Ohio-1691, ¶ 30, citing State v. Chandler, 8th Dist. Nos. 93664 and 93665, 2011-Ohio-590; State v. Warren, 8th Dist. No. 87726, 2006-Ohio-6415, ¶ 29. Furthermore, when read in their entirety, the jury instructions established that possession may not be inferred solely from mere access to the substance through ownership or occupation of the property in which the substance is found and conveyed the correct concept of constructive possession. Accordingly, we find the jury instruction that was given was proper and the trial court did not abuse its discretion when it chose not to give appellant‘s proposed instruction for constructive possession. Appellant‘s second assignment of error is overruled.
{¶19} Appellant‘s third and fourth assignments of error challenge the verdicts as being based upon legally insufficient evidence and against the manifest weight of the evidence.
{¶20} When an appellate court reviews a claim of insufficient evidence, “‘the relevant inquiry is whether, after viewing the еvidence 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. Tenace, 109 Ohio St.3d 255,
{¶21} Appellant argues that the state only established that illegal substances were found in the home. He further claims that although there was evidence of a controlled buy, there were multiple individuals in the home and it was never established thаt the money found on appellant in fact included the buy money. Also, appellant argues that the state failed to establish constructive possession.
{¶22} In Cuyahoga C.P. No. CR-552372, Det. Hall testified that upon executing the search warrant, appellant was found in the home, that а utility bill belonging to appellant was found in the bedroom of the home with the bar, that the room was secured with a padlock, and that a glass tube with burnt crack cocaine residue was located on the bar in appellant‘s bedroom and small pieces of “chorе boy” were found in plain view. In Cuyahoga C.P. No. CR-554394, the counts for which appellant was convicted pertained
{¶23} Upon our review of the entire record, we find there was sufficient evidence to support a finding of constructive possession. Further, when viewing the evidence in a light most favorable to the state, we find any rational trier of fact would have found the essential elements of the crimes proven beyond a reasonable doubt. We also are unable to conclude that the conviction is against the manifest weight of the evidence. Accordingly, appellant‘s third and fourth assignments of error are overruled.
{¶24} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is оrdered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, J., CONCUR