2004 Ohio 1418 | Ohio Ct. App. | 2004
{¶ 1} Appellant, Herbert A. Hilton, appeals from the judgment of the Summit County Court of Common Pleas, which convicted him of trafficking in cocaine, possession of cocaine, and illegal use or possession of drug paraphernalia. We affirm.
{¶ 3} On October 8, 2002, the Summit County Grand Jury indicted Mr. Hilton on the following: (1) one count of having weapons while under disability, in violation of R.C.
{¶ 4} Prior to trial, the court dismissed the possessing criminal tools charge, per the State's recommendation. A jury trial was held on the remaining charges. On May 9, 2003, a jury acquitted Mr. Hilton of the having weapons while under disability charge, but found Mr. Hilton guilty of trafficking in cocaine, possession of cocaine, and illegal use or possession of drug paraphernalia. The trial court sentenced him accordingly. This appeal followed.
{¶ 5} Mr. Hilton timely appealed, asserting two assignments of error for review. Because Mr. Hilton's first and second assignments of error revolve around the same set of factual circumstances, we address them together.
{¶ 6} In his first assignment of error, Mr. Hilton contends that the evidence in the record did not support a finding of guilt on his convictions for possession of cocaine and possession of drug paraphernalia, and that these convictions are also against the manifest weight of the evidence. In his second assignment of error, Mr. Hilton avers that his conviction for trafficking in cocaine is not supported by sufficient evidence in the record and is also against the manifest weight of the evidence.
{¶ 7} Initially, we note that Mr. Hilton did not properly preserve a portion of the error that he assigned to his conviction for possession or use of drug paraphernalia. Mr. Hilton's counsel moved for acquittal pursuant to Crim.R. 29 at the close of the State's evidence and also renewed the motion, which the court denied in both instances. After a careful review of the record, however, we observe that when counsel initially raised the motion, he proceeded to argue specific grounds for the motion. Particularly, counsel challenged the issue of Mr. Hilton's possession of the crack cocaine, and based on the possession of crack cocaine raised the issue of trafficking in crack cocaine. However, counsel only discussed the issue of possession with respect to the crack cocaine, and does not mention the issue of possession of the drug paraphernalia.
{¶ 8} It is a fundamental principle of appellate review that a court will not consider an error that an appellant was aware of, yet failed to bring to the attention of the trial court.State v. Awan (1986),
{¶ 9} Because Mr. Hilton set forth specific grounds in his Crim.R. 29 motion, but did not include the argument that the State failed to prove that Mr. Hilton had illegally used or possessed drug paraphernalia, he has waived the sufficiency argument he raises in his first assignment of error with respect to his conviction for possession of drug paraphernalia. Therefore, we are precluded from addressing it.
{¶ 10} We now address Mr. Hilton's remaining arguments regarding his convictions for possession of crack cocaine, illegal use or possession of drug paraphernalia, and trafficking in crack cocaine. As a preliminary matter, the Court observes that sufficiency of the evidence and weight of the evidence are legally distinctive issues. State v. Thompkins,
{¶ 11} Crim.R. 29(A) provides that a trial court "shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." A trial court may not grant an acquittal by authority of Crim.R. 29(A) if the record demonstrates that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.State v. Wolfe (1988),
{¶ 12} "While the test for sufficiency requires a determination of whether the [S]tate has met its burden of production at trial, a manifest weight challenge questions whether the [S]tate has met its burden of persuasion." State v.Gulley (Mar. 15, 2000), 9th Dist. No. 19600, citing Thompkins,
"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 (1986),
This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id.
Sufficiency of the evidence is required to take a case to the jury; therefore, a finding that a conviction is supported by the weight of the evidence necessarily includes a finding of sufficiency. State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462. "Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency." Id.
{¶ 13} In the present case, Mr. Hilton specifically argues in support of his first assignment of error that the State failed to establish that he had possession of crack cocaine and drug paraphernalia. Specifically, Mr. Hilton argues that the State failed to show that he had actual, physical, or constructive possession of the crack cocaine. He further argues that the State did not produce any evidence tending to show that he was conscious of the presence of the crack cocaine in the house, and that the State failed to introduce evidence showing that he was able to exercise dominion or control over the crack cocaine. Mr. Hilton also argues that no evidence was introduced that showed that he occupied the house.
{¶ 14} The jury in this case found Mr. Hilton guilty of possession of cocaine, in violation of R.C.
"No person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person."
{¶ 15} R.C.
{¶ 16} However, a person may knowingly possess a substance or object through either actual or constructive possession. SeeState v. McShan (1991),
{¶ 17} If the State relies on circumstantial evidence to prove an essential element of an offense, it is not necessary for "`such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction.'" State v.Daniels (June 3, 1998), 9th Dist. No. 18761, quoting Jenks
(1991), 61 Ohio St.3d at paragraph one of the syllabus. "`Circumstantial evidence and direct evidence inherently possess the same probative value[.]'" State v. Smith (Nov. 8, 2000), 9th Dist. No. 99CA007399, quoting Jenks, 61 Ohio St.3d at paragraph one of the syllabus. Furthermore, "`[s]ince circumstantial evidence and direct evidence are indistinguishable so far as the jury's fact-finding function is concerned, all that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt.'" State v. Chisolm (July 8, 1992), 9th Dist. No. 15442, quoting Jenks,
{¶ 18} During its case-in-chief, the State presented the testimony of a number of detectives who had executed the search warrant on September 26, 2002. Detective David Haverstick testified that when he entered the residence after knocking and announcing his presence, the people inside scattered, and Mr. Hilton was "sitting in a chair with no shirt on right * * * in the archway[,] [b]etween the living and dining room[.]" He further testified that he saw items on the table in the dining room, one of which was a fanny pack. Detective Haverstick testified that he opened up the fanny pack and found drugs inside, which he stated had tested positive for crack cocaine in a field test. He also testified that the drugs found in the fanny pack were packaged in four separate plastic baggies. Additionally, Detective Haverstick testified that he found additional drug paraphernalia in other parts of the house, which included crack pipes, a choreboy, and a filter for a crack pipe.
{¶ 19} Detective Donnie Williams also testified on behalf of the State. Detective Williams testified that he was also involved in the execution of the search warrant on that date. He testified that the Akron police department had received verified information that "crack cocaine had been sold from that address[,]" and that later surveillance of that residence connected Mr. Hilton to the residence. Detective Williams further testified that during the execution of the search warrant, he was assigned to search the upstairs level of the residence. He testified that he uncovered clothes in the master bedroom that "belonged to both persons [he] believed lived at that address[,]" who he identified as Mr. Hilton and Sabrina Robinson ("Robinson"). Detective Williams testified that several pairs of shoes belonging to Mr. Hilton were found in the bedroom, as well as "a couple [of] suits in the room, a hat or two, [and] pictures inside the room[.]" Detective Williams explained that he found pictures of Robinson as well as several pictures of Mr. Hilton in the bedroom.
{¶ 20} Detective Williams also testified generally as to the way in which crack cocaine is weighed and packaged for sale. He testified that "[w]hen a person sells crack cocaine in quantities they usually have digital scales in their house to weigh it out so they don't cheat their customers or put themselves out of business by giving away too much." Additionally, Detective Williams testified that crack cocaine is generally packaged in sandwich bags.
{¶ 21} Sergeant Jason Malick had also participated in the search. Sergeant Malick testified that he had searched Mr. Hilton and found approximately $3,000.00 in Mr. Hilton's pant pocket. Sergeant Malick described the money as "[a] wad of money, just stacked, mostly * * * twenties, tens, just a big wad and stuck in his pocket and folded." Sergeant Malick also testified that the money was not found in a wallet or money clip. Sergeant Malick proceeded to testify that an Ashiba digital scale, which is used to weigh crack cocaine or powder cocaine, was found in a kitchen cabinet in the house. He also testified that a triple beam scale was found inside the house. Additionally, Detective Malick testified that 55 dollars in cash were found on the floor in the upstairs hallway of the house.
{¶ 22} Robinson, who resides at the house, also testified on behalf of the State. She testified that she has been selling drugs since the time that she quit the ninth grade, and that she had known Mr. Hilton for about two years. Robinson testified that on the day in question, Mr. Hilton came into the residence with a "little plastic bag" of crack cocaine, and that he placed it on the table. She further testified that later that day, the police came to the house, and that she understood that this occurred due to her selling drugs in the past. Robinson also testified that in the past, she has given Mr. Hilton money from selling drugs, but that on that particular day she had not given him any such money. Robinson did note during cross examination that the fanny pack which the police found on the dining room table, belonged to a person named "Linda."
{¶ 23} Robert Velten, who is employed by the Ohio Bureau of Criminal Identification and Investigation and the Akron Police Department, testified on behalf of the State regarding his analysis of various items recovered from the residence. Mr. Velten testified that the drugs recovered from the fanny pack weighed in the aggregate approximately 13.81 grams. He also testified that a triple beam scale that was recovered contained residue of cocaine.
{¶ 24} Upon a careful review of the record, and upon viewing the direct and circumstantial evidence in the light most favorable to the prosecution, this Court cannot conclude that the jury lost its way and created a manifest miscarriage of justice when it found Mr. Hilton guilty of possession of crack cocaine, illegal use or possession of drug paraphernalia, and trafficking in crack cocaine. See Otten,
{¶ 25} Having found that Mr. Hilton's convictions for possession of cocaine and trafficking in cocaine were not against the manifest weight of the evidence, we also conclude that there was sufficient evidence to support the jury verdicts with respect to these charges. See Roberts, supra. As noted above, we specifically do not reach the issue of whether Mr. Hilton's conviction for the illegal use or possession of drug paraphernalia was supported by sufficient evidence in the record, as Mr. Hilton has waived this argument for the purposes of appeal. See Swanner, supra.
{¶ 26} Accordingly, Mr. Hilton's first and second assignments of error are overruled.
Judgment affirmed.
Carr, P.J. and Whitmore, J., concur.
"[A]ny equipment, product, or material of any kind that is used by the offender, intended by the offender for use, or designed for use, in propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body, a controlled substance in violation of this chapter."
