STATE OF OHIO, PLAINTIFF-APPELLEE, v. MACK J. RODGERS, DEFENDANT-APPELLANT.
CASE NO. 5-10-35
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
June 20, 2011
2011-Ohio-3003
OPINION. Appeal from Hancock County Common Pleas Court, Trial Court No. 2009-CR-229. Judgment Affirmed.
Sarah G. LoPresti for Appellant
Mark C. Miller for Appellee
{1} Defendant-appellant, Mack J. Rodgers (hereinafter “Rodgers“), appeals the judgment of conviction and sentence entered against him by the Hancock County Court of Common Pleas, following a jury trial in which Rodgers was found guilty of one count of aggravated possession of drugs. For the reasons that follow, we affirm.
{2} On November 19, 2009, the Hancock County Grand Jury returned an indictment against Rodgers charging him with one count of aggravated possession of drugs in violation of
{3} On December 14, 2009, December 16, 2009, and March 10, 2010, Rodgers filed motions to suppress. Eventually, hearings on the motions to suppress were heard on March 10, 2010 and April 17, 2010. Subsequently, on May 19, 2010, the trial court overruled Rodgers’ motions to suppress.
{4} On September 27, 2010, the State filed a motion to amend the indictment for purposes of changing the identity of the substance at issue, which it claimed was really N-Benzylpiperazine, in an amount that was equal to or exceeded five times the bulk amount, but less than fifty times the bulk amount.
{6} The matter proceeded to trial on September 27-28, 2010. After the presentation of evidence, the jury ultimately found Rodgers guilty of aggravated possession of drugs.
{7} On October 5, 2010, a sentencing hearing was held, wherein the trial court sentenced Rodgers to seven (7) years in prison.
{8} Rodgers now appeals and raises the following two assignments of error. For ease of our discussion, we elect to address Rodgers’ second assignment of error first.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT VIOLATED MACK RODGERS’ RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, MR. RODGERS WAS FOUND GUILTY OF THE AGGRAVATED POSSESSION OF DRUGS. FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION. (October 7, 2010 Judgment Entry).
{9} In his second assignment of error, Rodgers argues that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence.
[A]n appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial and determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. 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. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, superseded by state constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997).
{11} Unlike our review of the sufficiency of the evidence, an appellate court‘s function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports the verdict. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. In reviewing whether the trial court‘s judgment was against the weight of the evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting testimony. Id. In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder “clearly
{12} Here, Rodgers was charged with aggravated possession of drugs pursuant to
{13} At trial, the State presented testimony from Trooper Kurt Beidelschies of the Ohio State Highway Patrol, Findlay Post No. 32. Trooper Beidelschies testified that he was working the 11 pm to 7 am shift on November 10, 2009 on Interstate 75, when around 11:30 p.m., he observed a vehicle drive past him traveling faster than the posted speed limit. (Sept. 27, 2010 Tr. at 149-51). Trooper Beidelschies said that he used his laser check twice and it indicated that the vehicle was traveling 83 mph and 82 mph in a 65 mph zone. (Id. at 151). As a result, Trooper Beidelschies said that he executed a stop of the vehicle. (Id. at 151-52). Trooper Beidelschies testified that Rodgers had been driving the
{14} Trooper Beidelschies stated that he explained to Rodgers the reason for the traffic stop and asked him for his driver‘s license, registration, and proof of insurance. (Id. at 152). Rodgers did not give Trooper Beidelschies a driver‘s license, but instead gave him a Michigan state identification, which had a Michigan State parole card stuck to the back of it. (Id.). Additionally, Price explained to Trooper Beidelschies that the vehicle was a rental and that it was rented to Price‘s wife, Sierre Price. (Id.). Price gave Trooper Beidelschies the rental agreement, along with an Ohio driver‘s license. (Id. at 153).
{15} At that point, Trooper Beidelschies testified that he had Rodgers come with him and had Rodgers sit in the front seat of his patrol car while he conducted a check of Rodgers’ driver status. (Id.). Trooper Beidelschies said that he asked Rodgers about his parole card because typically, as a condition of release in any state, a person is not permitted to leave the state without getting permission. (Id. at 153-54). In response, Rodgers indicated that he was on parole for aggravated robbery and an attempted murder charge, and indicated that his parole officer did not know that he had left the state, even though it was a condition of his supervision. (Id.). Trooper Beidelschies testified that Rodgers’ license came back as being suspended. (Id).
{17} Trooper Beidelschies testified that by this time in the stop Rodgers appeared “extremely nervous” and that he was “very fidgety, overly nervous.” (Id. at 156). Consequently, based on the circumstances, Trooper Beidelschies said he requested canine assistance from the Hancock County Sheriff‘s Office. (Id. at 156). Trooper Beidelschies testified that Deputy Smith arrived within five minutes with his canine, Becky, who positively alerted to the odor of narcotics coming from somewhere inside the vehicle after doing a walk around the vehicle. (Id. at 156-57). Subsequently, Trooper Beidelschies placed both Rodgers and Price in the back of his cruiser, explained to them that based on the canine‘s alert they were going to search the vehicle, and asked them whether either of them had
{18} Then Trooper Beidelschies said that he, Deputy Smith, and Trooper Kline from the Ohio State Highway Patrol, Findlay Post No. 32, conducted a search of the vehicle. (Id. at 157-60). Eventually, they discovered two plastic baggies inside the armrest in the center of the back seat of the vehicle that contained blue and green pills. (Id. at 158-60); (State‘s Exs. 1, 1-A, 2, 2-A).
{19} Trooper Beidelschies explained that after they searched the vehicle, he took Price and Rodgers back to the station and searched the two men. (Id. at 178). In particular, Trooper Beidelschies found two Vicodin pills on Price after he shook Price‘s pant leg. (Id.). Based on what Trooper Beidelschies had heard from the in-car audio recording and the fact that the pills had rolled out from Price‘s pant leg, Trooper Beidelschies concluded that the pills had been previously inserted in Price‘s anal cavity. (Id.). In addition to the two pills found on Price, Trooper Beidelschies also found four additional similar Vicodin pills inside his patrol car. (Id.).
{20} Trooper Beidelschies also testified that along with a video recording device in the front of his patrol cruiser, there were digital recording devices on his person and inside his patrol cruiser as well. (Id. at 164). Both devices were
{21} In particular, in the audio recording, Trooper Beidelschies can be heard talking to Rodgers in his cruiser about the possibility of bond given Rodgers’ suspended license. (State‘s Ex. 5). In addition, Trooper Beidelschies also can be heard informing Rodgers that in light of the rental agreement and the fact that neither Rodgers nor Price was permitted as a driver of the vehicle he would have to contact Enterprise Rental Company and determine how the company wanted to proceed. (Id.). Furthermore, later on in the audio, while the law enforcement officers were outside the cruiser, Price and Rodgers can be heard discussing which person should take the fall for the pills found in the vehicle. (Id.). While Price does most of the talking and tries several times to convince Rodgers to admit to being responsible for the drugs, at one point Rodgers refuses to go along and tells Price “we came up there together with this shit, man.” (Id.). In addition, Rodgers can be heard telling Price several times that they have to “fight this,” and at certain times, Rodgers can also be heard explaining to Price
{22} On cross-examination, Trooper Beidelschies acknowledged that on the recording Rodgers denied that the pills were his and that he was “going to fight this.” (Id. at 183-84). However, Trooper Beidelschies later explained that he believed Rodgers had made that statement because he did not believe Trooper Beidelschies could prove the pills belong to him based on the fact that they were found in a rental car. (Id. at 183-84, 188). Trooper Beidelschies also stated that it was only Price, not Rodgers, who had admitted to smoking marijuana. (Id. at 184-85). Moreover, the Vicodin pills had only been found on Price. (Id. at 184-85). Furthermore, Trooper Beidelschies testified that there was nothing attributable to Rodgers with respect to the rental agreement since the rental agreement had been in Price‘s wife‘s name. (Id. at 186). Finally, Trooper Beidelschies acknowledged that a vast majority of the spoken words on the recording belonged to Price and not Rodgers, and that Price repeatedly asked Rodgers that if he admitted to the drugs, he would put together something for him. (Id. at 186). Nevertheless, Trooper Beidelschies explained that even though Rodgers made statements that he did not know anything about the drugs, Trooper Beidelschies believed that Rodgers had made those comments in reference to the fact that they had been
{23} Next to testify was Deputy Frederick R. Smith of the Hancock County Sheriff‘s Office, who was assigned to the canine patrol and paired with his canine partner, Becky, on the day in question. (Id. at 196). Deputy Smith testified that on November 10, 2009, he received a call for a canine sniff between the river and State Route 12 on southbound I-75. (Id. at 198-99). Deputy Smith said that after he spoke to Trooper Beidelschies at the scene, he and Becky did a search of the exterior of the vehicle. (Id. at 199). Deputy Smith explained that typically he and his canine partner will do two sweeps of the vehicle, but in this particular case, Becky positively reacted to the driver‘s door seam on their first sweep of the vehicle. (Id. at 199). At that point, Deputy Smith said that he, along with Trooper Beidelschies and Trooper Kline, conducted a search of the interior of the vehicle and located two bags of blue and green pills in the back seat center armrest. (Id. at 200). On cross-examination, when asked whether Becky could tell the difference between MDMA and N-Benzylpiperazine, Deputy Smith stated that Becky was trained and certified in marijuana, cocaine, heroin, and Methaphetamines, and any derivatives of those four basic odors. (Id. at 202).
{24} Finally, Heather Brin Sheskey, a chemist with the Ohio Highway Patrol crime lab, testified. Sheskey said that she performed the analysis on the
{25} After Sheskey‘s testimony and the admission of the State‘s exhibits, the State rested, and the defense raised a Crim.R. 29 motion for acquittal arguing that the State had failed to present sufficient evidence that Rodgers had known about the drugs or had possessed the drugs involved in the incident. (Sept. 28, 2010 Tr. at 231-33). The trial court overruled the defense‘s motion for acquittal, at which time the defense rested without calling any witnesses or presenting any
{26} Now on appeal, Rodgers claims that there was insufficient evidence to establish that he (1) acted knowingly and (2) either actually or constructively possessed the drugs that were found in the car‘s backseat armrest. We disagree.
{27} With respect to whether Rodgers had knowledge of the drugs,
{28} At trial, there was testimony that Rodgers appeared “extremely nervous” and that he was “very fidgety” when speaking to Trooper Beidelschies in his cruiser. In addition, in the audio recording Rodgers and Price can clearly be heard discussing the drugs in question and attempting to formulate a defense strategy prior to the law enforcement officers discovering the drugs in the vehicle. We find that when viewing this evidence in a light most favorable to the State a
{29} Furthermore, with respect to the issue of possession, possession has been 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.”
{30} Here, there was evidence that, again when viewed in a light most favorable to the State, a rational trier of fact could have found that Rodgers had constructive possession of the drugs. While the vehicle involved was a rental vehicle, neither Rodgers nor Price was listed as a permitted driver on the rental agreement, and Rodgers was in fact the person driving the vehicle when Trooper Beidelschies executed the stop. Moreover, Rodgers told Trooper Beidelschies that he was the one responsible for returning the rental vehicle back to Michigan after he dropped off Price in Columbus. Furthermore, there was no evidence presented that Price ever drove the rental vehicle that night. As Rodgers stated in his appellate brief, his mere proximity to the pills found in the rental vehicle is alone insufficient to establish constructive possession; however, proximity to the object does constitute some evidence of constructive possession, and proximity may, coupled with another factor or other factors, establish constructive possession. State v. Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶13, citing State v. Fry, 4th Dist. No. 03CA26, 2004-Ohio-5747, ¶39. Here, in addition to the fact that Rodgers was the driver and responsible for returning the rental vehicle, there was the audio recording that evidenced Rodgers’ and Price‘s conversation in the back of the cruiser. In the audio recording, Rodgers not only
{31} Finally, Rodgers also claims that his conviction was against the manifest weight of the evidence. Rodgers again maintains that the State failed to prove that he had knowledge and possession of the drugs in the vehicle. In particular, Rodgers first claims that Trooper Beidelschies mischaracterized the conversation between Rodgers and Price in the audio recording exhibit. Rodgers argues that his statement to Price that “we came up there together with this shit, man” was not an admission that he knew about the drugs but rather was nothing more than an acknowledgement that both parties would likely be blamed for the drugs. Rodgers also asserts that the evidence in actuality showed that Price, not Rodgers, was the person most likely responsible for the drugs found in the rental vehicle given the fact that the rental vehicle was in Price‘s wife‘s name and the fact that the Vicodin pills were found on Price.
{32} However, Trooper Beidelschies’ testimony and credibility were matters for the trier of fact to weigh and determine. In addition, the possibility
{33} Overall, given all of the above circumstances, specifically the statements made by Rodgers in the audio recording, we cannot say that the jury clearly lost its way and created such a manifest miscarriage of justice that Rodgers’ conviction must be reversed.
{34} Rodgers’ second assignment of error is, therefore, overruled.
MACK RODGERS WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION. (T.pp. 7-14).
{35} In his first assignment of error, Rodgers claims that he was denied effective assistance of trial counsel when his trial counsel failed to ask for a continuance after the trial court allowed the State to amend the indictment the day of trial.
{36} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. In order to show counsel‘s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel‘s actions were not trial strategies prompted by reasonable professional judgment. Strickland, 466 U.S. at 687.
{37} Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie (1998),
{38} Prejudice results when “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 691. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Bradley, 42 Ohio St.3d at 142; Strickland, 466 U.S. at 694.
{39} Here, on September 27, 2010, the State filed a motion to amend the indictment. Essentially, the State had discovered that the substance found in the vehicle driven by Rodgers was not Methylenedioxymethamphetamine (“MDMA“), but actually N-Benzylpiperazine (otherwise known as “BZP“). The State notified Rodgers’ trial counsel three days prior to the filing of the motion of its intent to file the request. (Sept. 27, 2010 Tr. at 5, 12). As a result, prior to trial on September 27, 2010, a hearing was conducted, during which Rodgers’ defense counsel stated on the record that it had been part of his defense strategy to argue that the substance identified and listed in the report was not the substance named
{40} On appeal, Rodgers claims that he was denied effective assistance of trial counsel because his trial counsel failed to request a continuance after the trial court allowed the State to amend the indictment the day of trial. Rodgers argues that given his trial counsel‘s statements at the hearing, it is clear that his defense strategy was largely based on the lack of evidence that the drug listed in the indictment was ever in Rodgers’ possession. Rodgers claims that had his counsel asked for a continuance, he would have had time to prepare a defense focused on the lack of evidence that Rodgers had any knowledge of the drugs in the vehicle.
{41} After reviewing the record, we do not believe that Rodgers’ trial counsel‘s performance was deficient or unreasonable under the circumstances. As this Court has previously noted, “debatable strategic and tactical decisions may not form the basis of an ineffective assistance of counsel claim, even if a better strategy might have been utilized.” State v. Wilson, 3d Dist. No. 1-09-53, 2010-Ohio-2947, ¶14, citing State v. Utz, 3d Dist. No. 3-03-38, 2004-Ohio-2357, ¶12,
{42} Even if Rodgers’ trial counsel‘s performance was deficient or unreasonable, Rodgers has failed to demonstrate that he was prejudiced. First of all, we note that there was no Civil Rule 7(D) violation to which Rodgers’ trial counsel should have requested a continuance. The amendment to the indictment did not change the identity of the offense (it was still an aggravated possession of drugs), nor did it change the level of offense (since both MDMA and BZP are Schedule I drugs). See
{43} Rodgers’ first assignment of error is, therefore, overruled.
{44} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
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