STATE OF OHIO, Appellee, - vs - KEENAN D. LEE, Appellant.
CASE NOS. CA2020-09-014 CA2020-09-015
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY
7/26/2021
[Cite as State v. Lee, 2021-Ohio-2544.]
BYRNE, J.
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case Nos. CRI 20190290 and CRI 20190376
Wolfe Law Group, LLC, and Stephen T. Wolfe, for appellant.
O P I N I O N
BYRNE, J.
{¶1} Appellant, Keenan Lee, appeals from his convictions in the Fayette County Court of Common Pleas for trafficking in cocaine, possession of cocaine, aggravated trafficking in drugs, aggravated possession of drugs, failure to comply, and tampering with evidence. For the reasons detailed below, we affirm Lee‘s convictions.
I. Facts and Procedural Background
{¶2} Lee‘s convictions arose out of two similar, but separate, interactions he had
{¶3} On the evening of August 9, 2019, after dark, Patrolman Jeffrey Heinz of the Washington Court House Police Department was on bicycle patrol near the Jenni Lane Apartments when he observed a vehicle driving over the posted speed limit of 25 miles per hour. Patrolman Heinz attempted to effectuate a traffic stop but the driver, later determined to be Lee, accelerated past the patrolman. Lee drove a short distance then ditched the vehicle and fled on foot. Patrolman Heinz chased Lee. During the chase Patrolman Heinz observed that Lee had something in his hand. Two other patrolmen, Edwin Stapleton and Adam Phillips, arrived on scene and joined the pursuit. Patrolman Heinz continued to chase Lee and remained in close proximity to him until he was cut off by the other two officers and lost sight of him for a short period of time. Lee eventually fell to the ground where he was handcuffed and placed in custody. Patrolmen Phillips and Heinz then retraced the path of the chase. Under a parked car along the path of the chase the patrolmen located a large baggie containing several other smaller baggies. The baggies were filled with suspected narcotics. Subsequent testing confirmed the baggies contained approximately 32 grams of methamphetamine.
{¶4} The events of August 9 led to charges. On September 6, 2019, Lee was indicted for aggravated trafficking in methamphetamine in violation of
{¶6} When the vehicle finally stopped, Lee got out of the car and fled. The passenger in the vehicle, Davion Carson, did not run and was taken into custody. Lee was apprehended a short while later. Following Lee‘s arrest, Patrolmen Heinz and Phillips again retraced the path of the chase. They found three bags of suspected narcotics along the right side of the road at various locations along the path of the chase. Testing confirmed the bags contained cocaine, methamphetamine, and heroin.
{¶7} The October 10 incident also led to charges. On November 1, 2019, Lee was indicted for trafficking in cocaine in violation of
{¶8} Lee‘s two cases, CRI 20190290 and CRI 20190376, were tried together to a jury. The state presented testimony from the three Washington Court House patrolmen involved in the August and October incidents. At the conclusion of the state‘s case-in-chief, Lee moved for acquittal pursuant to Crim.R. 29. The trial court denied the motion. Lee rested his defense without calling any witnesses, and the case was submitted to the jury for deliberation. The jury returned guilty verdicts on each count alleged in the indictments. The trial court sentenced Lee to a minimum of 15 years and a maximum of 19 years in prison.
II. Law and Analysis
{¶9} Lee now appeals, raising three assignments of error. We will address Lee‘s assignments of error out of order.
{¶10} Assignment of Error No. 2:
{¶11} THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS AND THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT‘S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29.
{¶12} Assignment of Error No. 3:
{¶13} THE JURY‘S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶14} In his second and third assignments of error, Lee argues the trial court erred by denying his Crim.R. 29 motion for acquittal and that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence.
{¶15} Crim.R. 29(A) provides that “[t]he court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of
{¶16} When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would support a conviction. State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34. The relevant inquiry is “whether, after viewing the 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. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-2321, ¶ 22. In other words, the test for sufficiency requires a determination as to whether the state has met its burden of production at trial. State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 34.
{¶17} A manifest weight challenge 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. State v. Vunda, 12th Dist. Butler Nos. CA2012-07-130 and CA2013-07-113, 2014-Ohio-3449, ¶ 34. In assessing whether a conviction is against the manifest weight of the evidence, a reviewing court examines the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines 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. Sess, 12th Dist. Butler No. CA2015-06-117, 2016-Ohio-5560, ¶ 13. A unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required
{¶18} Although the concepts of sufficiency of the evidence and weight of the evidence are legally distinct, as this court has observed, a finding that a conviction is supported by the manifest weight of the evidence is also dispositive of the issue of sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. “Because sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency.” State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.
A. August 9 Incident
{¶19} We first address Lee‘s convictions for aggravated possession of drugs and aggravated trafficking in drugs arising out of the events of August 9.
{¶20} Lee was convicted of aggravated possession of drugs in violation of
{¶21} “Possession” is defined as “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.”
{¶22} Lee was also convicted of aggravated trafficking in drugs in violation of
{¶23} Both the possession statute and the trafficking statute apply to an offender who “knowingly” engages in the conduct prohibited.
{¶24} “[C]ircumstantial evidence may be used to establish the offense of drug trafficking.” State v. Luna, 12th Dist. Butler No. CA2008-04-115, 2009-Ohio-3421, ¶ 27. Furthermore, as we have previously recognized, “‘plastic baggies, digital scales, and large sums of money are often used in drug trafficking [and such items] constitute circumstantial
{¶25} Following review, we find Lee‘s convictions for aggravated possession and aggravated trafficking are supported by sufficient evidence and are not against the manifest weight of the evidence. Though the state‘s case was based on circumstantial evidence, it is well established that both circumstantial and direct evidence have the same probative value, and in some instances, certain facts can be established only by circumstantial evidence. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 75; State v. Crutchfield, 12th Dist. Warren No. CA2005-11-121, 2006-Ohio-6549, ¶ 20.
{¶26} The state presented evidence that when Patrolman Heinz attempted to effectuate a traffic stop, Lee refused to stop his vehicle and continued driving, then ditched his vehicle, and then attempted to flee on foot. After Patrolman Heinz and the other patrolmen chased and apprehended Lee, law enforcement found a large baggie containing several smaller baggies of methamphetamine under a parked car along the path of the pursuit. This amounts to circumstantial evidence that Lee possessed those drugs and tossed the drugs while law enforcement attempted to apprehend him. The fact that none of the patrolmen saw Lee throw the drugs under the car did not require the jury to find that the drugs were not Lee‘s as the chase occurred at night, while Lee and the patrolmen were running, and the officers would not necessarily have been able to see Lee throw the drugs. In addition, at some point during the chase Patrolman Heinz observed that Lee had something in his hand, and that object was no longer in his hand at the time he was apprehended.
{¶27} The fact that the baggie found under the parked vehicle contained multiple
{¶28} Considering these facts and circumstances, we find Lee‘s convictions for the aggravated possession and aggravated trafficking of methamphetamine on August 9 were supported by sufficient evidence and were not against the manifest weight of the evidence. Likewise, the trial court did not err in denying Lee‘s Crim.R. 29(A) motion. Mota, 2008-Ohio-4163 at ¶ 5 (same standard applies to review of denial of Crim.R. 29(A) motion as applies to review of sufficiency-of-the-evidence claim).
B. October 10 Incident
1. Possession and Trafficking
{¶30} As just mentioned, the October 10 incident led to possession and trafficking charges with respect to methamphetamine and cocaine. We have already described the elements of the crimes of possession of drugs and trafficking of drugs, as well as the “aggravated” version of those crimes as applied to methamphetamine. With respect to cocaine, the same statutes –
{¶31} Lee was charged as the principal offender with regard to all four of the drug possession and trafficking offenses, but the state only presented circumstantial evidence that Lee possessed and trafficked the drugs. Lee argues that the state offered no evidence, circumstantial or direct, showing that Lee had any knowledge of the drugs that were found along the route of the October 10 chase. Lee argues that even if the drugs found along the route of the chase were ever in Lee‘s car, “common sense would dictate” that the drugs were thrown out of the car by Lee‘s passenger, Davion Carson, because the drugs were found on the right (passenger) side of the road. He further argues that the state offered no evidence demonstrating that Lee did anything that would make him complicit with Carson‘s
{¶32} “‘Although a defendant may be charged in an indictment as a principal, the court may instruct the jury on complicity where evidence at trial reasonably supports a finding that the defendant was an aider or abettor.‘” State v. Gonzalez, 10th Dist. No. 10AP-628, 011-Ohio-1193, ¶ 24, quoting State v. Hunter, 10th Dist. Franklin No. 14AP-163, 2014-Ohio-4649, ¶ 23. The trial court did so here. According to the complicity statute, “[n]o person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense.”
{¶33} The accused “must actively participate in some way and contribute to the unlawful act to aid or to abet.” State v. Davis, 12th Dist. Madison No. CA2015-05-015, 2016-Ohio-1166, ¶ 49. Aiding and abetting may be shown through either direct or circumstantial evidence, and “participation in criminal intent may be inferred from the presence, companionship, and conduct before and after the offense is committed.” State v. Fletcher, 12th Dist. Brown No. CA2016-08-016, 2017-Ohio-1006, ¶ 53.
{¶34} Following review of the record, we find the state presented sufficient evidence that Lee engaged in both the trafficking and possession of cocaine and methamphetamine and that his convictions are supported by the weight of the evidence. The state presented
{¶35} With respect to possession, the state presented evidence that Lee attempted to flee from Patrolman Stapleton after the patrolman attempted to effectuate a traffic stop. Lee sped away at speeds between 80 and 100 miles per hour through the streets of Washington Court House until he eventually ditched his vehicle and fled on foot. Lee‘s passenger, Davion Carson, did not flee. After Lee was captured, and upon retracing the route, Patrolmen Heinz and Phillips discovered three bags containing drugs along the path of the chase. Though this is circumstantial evidence of possession, as previously explained “[c]onstructive possession may be proven by circumstantial evidence alone.” Fultz at ¶ 12. It was entirely proper for the jury to conclude that bags of drugs – especially in such large quantities – do not normally lay about the streets, and to conclude that the person that engaged in a high-speed police chase along the very route where the drugs were found was the possessor of those drugs.
{¶36} Even if we assume that Lee is correct that it was Carson, not Lee, who threw the drugs out of the window of Lee‘s car during the high-speed pursuit, it was Lee, not Carson, who decided to flee police at extreme speeds, rather than pull over when the patrolman attempted to effectuate a traffic stop. Likewise, it was Lee, not Carson, who ditched his car and attempted to flee on foot. The jury could find that these facts demonstrate that Lee “supported, assisted, encouraged, cooperated with, advised, or incited” Carson in the possession of the drugs, and that Lee “shared the criminal intent” of Carson. Johnson, 93 Ohio St. at 245-246. The jury could also find that these facts demonstrate that Lee “actively participate[d] * * * and contributed” to the possession of the
{¶37} With respect to trafficking, the same facts and reasoning apply. But additionally, the state presented evidence that the bags found along the path of the pursuit contained large quantities of both cocaine and methamphetamine far exceeding the bulk amounts – specifically, two bags of cocaine weighting 37 grams, and one bag of methamphetamine weighing 20 grams. See, e.g., supra, Kallenberger, 2018-Ohio-2212 at ¶ 26; Lindow, 2016-Ohio-913 at ¶ 19; Young, 2010-Ohio-3402 at ¶ 19. Patrolman Heinz testified that the amount of drugs found were consistent with trafficking and inconsistent with personal use. In addition, to the weight and variety of drugs, Patrolman Heinz also testified that he found a number of empty plastic baggies along the route along which Lee attempted to flee from law enforcement. We find the state presented sufficient evidence that Lee trafficked or aided and abetted Carson in trafficking the methamphetamine and cocaine and that his convictions are supported by the weight of the evidence. The state presented testimony and evidence from which a reasonable juror could have found all the essential elements of the trafficking offenses proven beyond a reasonable doubt. Likewise, the trial court did not err by denying Lee‘s motion for acquittal pursuant to Crim. R. 29.
2. Tampering with evidence
{¶38} Lee was further convicted of tampering with evidence in violation of
{¶39} A conviction for tampering with evidence requires “proof that the defendant intended to impair the value or availability of evidence that related to an existing or likely official investigation or proceeding.” State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 19. “Likelihood is measured at the time of the act of alleged tampering.” Id. Tampering with evidence requires a person to act with purpose, meaning the person has a specific intention to cause a certain result. See
{¶40} On appeal, Lee maintains that he could not be found guilty of tampering with evidence because he had no knowledge that he was being investigated for drug trafficking until after he was apprehended when the drugs were found. However, contrary to Lee‘s argument, we find the jury could reasonably find him guilty of tampering with evidence. As held by our sister district “[d]iscarding a bag of drugs from one‘s person during a chase is precisely the sort of conduct the tampering statute contemplates,” and a factfinder could reasonably infer that a criminal defendant did so in order to prevent the item from being discovered by placing it out of sight or otherwise getting rid of it. State v. Peacock, 3d Dist. Seneca No. 13-16-26, 2017-Ohio-2592, ¶ 23. In this case, a jury could have reasonably concluded that Lee knew an investigation into his drug activities was likely to occur and that he threw or aided and abetted Carson in throwing the baggies in an effort to impair the value or availability of that evidence in a likely investigation. State v. Campbell, 9th Dist. Medina No. 18CA0005-M, 2019-Ohio-583, ¶ 14. Accordingly, we find Lee‘s conviction for tampering with evidence is based on sufficient evidence and is not against the manifest weight of the evidence and the trial court did not err by denying Lee‘s motion for acquittal pursuant to Crim. R. 29.
{¶41} For the foregoing reasons, Lee‘s second and third assignments of error are without merit and are hereby overruled.
{¶42} Assignment of Error No. 1:
{¶43} THE TRIAL COURT ERRED WHEN IT GAVE THE JURY A COMPLICITY INSTRUCTION.
{¶44} In his first assignment of error, Lee argues that the trial court erred by giving a complicity instruction because the evidence did not support a finding that he was an aider or abettor.
{¶45} Lee acknowledges he failed to object to the trial court‘s complicity instruction and, therefore, he waived all but plain error. State v. Evick, 12th Dist. Clermont No. CA2018-03-016, 2019-Ohio-2791, ¶ 24. To constitute plain error there must be a deviation from a legal rule. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Second, the error must be fundamental, palpable, and obvious on the record such that it should have been apparent to the court without an objection. State v. Barnette, 12th Dist Butler No. CA2012-05-099, 2013-Ohio-990, ¶ 30. Third, the error must have affected appellant‘s substantial rights, i.e., the error affected the outcome of the trial. Barnes at 27. An appellate court will take notice of plain error with “utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.” State v. Baldev, 12th Dist. Butler No. CA2004-05-106, 2005-Ohio-2369, ¶ 12.
{¶46} As previously noted, Lee was charged as the principal offender for the
{¶47} Following review, we find the trial court did not commit plain error by providing a complicity instruction. As noted above, Lee‘s counsel raised the argument himself that because the drugs were found on the right side of the road, they must have been thrown out the passenger window by Davion Carson. The state correctly responded by arguing that the state was not required to produce direct evidence that someone observed Lee throw the items out of the vehicle, but that the jury could consider circumstantial evidence that the items found along the road came from the fleeing car. Given the trial testimony and the arguments raised by counsel, the complicity instruction was necessary to provide accurate instructions for the jury. State v. Roberts, 12th Dist. Butler No. CA2001-09-203, 2002-Ohio-4482, ¶ 26 (“[w]ith respect to an allegedly improper jury instruction, plain error exists only where, but for the error, the outcome of the trial would have been clearly different“), citing State v. Underwood, 3 Ohio St.3d 12 (1983), syllabus. See, e.g., State v. Laghaoui, 12th Dist. Warren No. CA2017-06-098, 2018-Ohio-2261, ¶ 29 (no error, let alone
{¶48} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.