No. 06CA008. | Ohio Ct. App. | Nov 16, 2006
{¶ 2} A bench trial commenced on March 15, 2006. By judgment entry filed March 21, 2006, the trial court found appellant guilty of the illegal conveyance and possession of drugs counts, and not guilty of the possession of drug paraphernalia count. By judgment entry filed April 21, 2006, the trial court sentenced appellant to an aggregate term of one year in prison.
{¶ 3} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
{¶ 7} Crim.R. 29 governs motion for acquittal. Subsection (A) states the following:
{¶ 8} "The 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 acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case."
{¶ 9} The standard to be employed by a trial court in determining a Crim.R. 29 motion is set out in State v.Bridgeman (1978),
{¶ 10} "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt."
{¶ 11} On review for manifest weight, a reviewing court is to 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 jury 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. Martin (1983),
{¶ 12} Appellant did not present any witnesses and rested following the close of appellee's case-in-chief and the denial of his Crim.R. 29 motion. Therefore, we will address the two assignments together.
{¶ 13} Appellant was convicted of illegal conveyance of prohibited items onto grounds of a detention facility in violation of R.C.
{¶ 14} "(A) No person shall knowingly convey, or attempt to convey, onto the grounds of a detention facility or of an institution that is under the control of the department of mental health or the department of mental retardation and developmental disabilities, any of the following items:
{¶ 15} "(2) Any drug of abuse, as defined in section
{¶ 16} Pursuant to R.C.
{¶ 17} Appellant's challenge to his conviction is based upon whether the facts reflect he "knowingly" and voluntarily committed the offense as required by R.C.
{¶ 18} We concur with the opinion in Sowry that an individual does not "knowingly" and voluntarily go into a detention facility while under arrest, and exercising one's Fifth Amendment right in denying a criminal act does not constitute a "knowingly" or voluntary act. However, we find the case sub judice is subject to distinction. Appellant was under arrest for a drug offense and the police officer specifically informed appellant he would be charged with the offense of illegal conveyance into a detention facility if he was not forthcoming on whether he had other contraband on his person:
{¶ 19} "Q. Agent Burnett, after you identified Mr. Pettiford as the person urinating what was your next step with him involving this particular arrest?
{¶ 20} "A. Okay. After everything had calmed down, we figured out who people were, a deputy from the Holmes County Sheriff's Office had actually met with Mr. Pettiford and went over some discussion with him, conversation. In my contact with him when I met with him I Mirandized him and during that time Deputy Mullet from the Holmes County Sheriff's Office had advised me that he had asked Mr. Pettiford if he had anything on him, and Mr. Pettiford had given him a small bag of marijuana, I believe a Bic lighter. And once I had Mirandized him I asked him if he had anything else on him and he advised me no. I said, `You're going to be taken to the Holmes County Jail for the possession of marijuana.' I said, `I need you to be honest with me and tell me if you have anything else on your persons as far as controlled substances,' in which he stated no, he did not.
{¶ 21} "Q. Did you tell him there was a greater risk if he had a controlled substance on him once he got to the detention facility, it would be charged as a felony?
{¶ 22} "A. Yes, I did.
{¶ 23} "Q. Did he make any comment about that?
{¶ 24} "A. He just advised me that he had nothing else on him." T. at 6.
{¶ 25} We find appellant's responses were more than a constitutional protected "no" and he understood the ramifications of not disclosing the Xanax in his possession. Appellant's action constitutes a knowingly and voluntary act of conveying drugs into a detention facility.
{¶ 26} Upon review, we find sufficient evidence to support the conviction and no manifest miscarriage of justice.
{¶ 27} Assignments of Error I and II are denied.
{¶ 28} The judgment of the Court of Common Pleas of Holmes County, Ohio is hereby affirmed.
Farmer, J. Wise, P.J. and Boggins, J. concur.