State v. RuckerState v. Rucker
Ron O‘Brien, Prosecuting Attorney, and Sheryl L. Pritchard, for appellee.
The Law Office of Jennifer L. Coriell, LLC, Jennifer L. Coriell; Armengau & Associates, Javier H. Armengau, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} Howard Rucker, III, defendant-appellant, appeals from the judgment of the Franklin County Court of Common Pleas, in which the court found him guilty, pursuant to a bench trial, of attempted possession of drugs, a violation of
{¶ 2} On February 18, 2011, Columbus Police Officer Daniel Grant observed a drug deal in a department store parking lot in Columbus, Ohio. Officer Grant pursued the vehicle onto Interstate 71. During the chase, several bags of a white, powdery substance
{¶ 3} When appellant arrived at Medrano‘s apartment, six police officers were hiding inside. On the kitchen counter, the police had placed two objects, which were actually radio batteries wrapped to look like cocaine “bricks.” Appellant entered the apartment with a soft-sided lunch bag/cooler, closed the front door, and moved deeper into the apartment. Before appellant spoke, police apprehended him. Appellant had approximately $3,000 on his person and $64,000 in the bag.
{¶ 4} Appellant was charged with attempted aggravated possession of drugs and trafficking in drugs, with a major drug offender specification because the amount of drugs was over 1,000 grams. On August 2, 2012, a bench trial commenced. At the close of the state‘s evidence, appellant did not call any witnesses and moved for dismissal pursuant to
[I.] INSUFFICIENT EVIDENCE EXISTED TO CONVICT APPELLANT AND APPELLANT‘S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
[II.] THE TRIAL COURT ERRED IN SENTENCING APPELLANT.
{¶ 5} Appellant argues in his first assignment of error that the trial court‘s judgment was based upon insufficient evidence and against the manifest weight of the evidence. This court‘s function when reviewing the weight of the evidence is to determine
{¶ 6} The weight of the evidence concerns the inclination of the greater amount of credible evidence offered to support one side of the issue rather than the other. Thompkins at 387. When presented with a challenge to the manifest weight of the evidence, an appellate court may not merely substitute its view for that of the trier of fact, but 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. Id. An appellate court should reserve reversal of a conviction as being against the manifest weight of the evidence for only the most ” ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Id., quoting Martin at 175; State v. Strider-Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12.
{¶ 7} Although sufficiency and manifest weight are different legal concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency. State v. McCrary, 10th Dist. No. 10AP-881, 2011-Ohio-3161, ¶ 11, citing State v. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15. ” ‘[T]hus, a determination that a conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.’ ” Id. In that regard, we first examine whether appellant‘s conviction is supported by the manifest weight of the evidence. State v. Gravely, 188 Ohio App.3d 825, 2010-Ohio-3379, ¶ 46 (10th Dist.).
{¶ 8}
No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.
{¶ 9}
(A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.
(B) It is no defense to a charge under this section that, in retrospect, commission of the offense that was the object of the attempt was either factually or legally impossible under the attendant circumstances, if that offense could have been committed had the attendant circumstances been as the actor believed them to be.
{¶ 10}
(A) No person shall knowingly do any of the following:
* * *
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, 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.
{¶ 11}
(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
{¶ 13} The Supreme Court of Ohio has held that, “[to] support a conviction for complicity by aiding and abetting pursuant to
{¶ 14} Appellant admits that he had a lot of money in his bag but claims that the only evidence that it was to be used to buy drugs came from Medrano‘s testimony, and Medrano is not reliable because he entered into a deal with the state to reduce his own prison sentence. Although the money might have been intended to buy drugs at some time, argues appellant, there was no evidence that the money was to buy drugs from Medrano.
{¶ 15} Initially, appellant‘s argument raises an issue of witness credibility. “The choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123 (1986). The fact finder is free to believe all, part or none of the testimony of each witness appearing before it. Hill v. Briggs, 111 Ohio App.3d 405, 412 (10th Dist.1996). Here, we must give great deference to the finder of fact‘s decision on credibility. The trial court, as the finder of fact, was in the best position to determine whether Medrano‘s testimony was credible. The trial court found Medrano‘s testimony both persuasive and credible. We cannot find that the trial
{¶ 16} After reviewing the record, we find appellant‘s conduct was evidence that could have led the trier of fact to convict him of these offenses under a theory of complicity. Medrano testified that, on the day of appellant‘s arrest, he called appellant to inform him that he had the cocaine. Appellant knew the price and location of the drugs from prior deals. Appellant had $3,000 on his person and $64,000 in a lunch bag. Hernandez testified that the standard cost of one kilogram of cocaine was $32,000. The state also introduced the monitored phone calls between Medrano and appellant into evidence. Appellant asked during one phone call, “How many are you bringing me?” When Medrano informed appellant that he only had two, appellant stated he wanted more later. Appellant then drove to Medrano‘s apartment with the money. This is conduct that supported, assisted or encouraged Medrano in the commission of the crime.
{¶ 17} Appellant also argues that it was impossible for him to buy drugs from Medrano because there were no actual drugs in the apartment, and he could not have possessed drugs because he was arrested as soon as he walked through the apartment door.
{¶ 18} The trial court could have reasonably found that there was sufficient evidence that appellant attempted to possess actual drugs. There was a history of appellant purchasing drugs from “the Mexicans.” Hernandez also testified that he had delivered drugs to appellant three times before and there was never an occasion where Hernandez would have drugs for appellant and appellant would refuse to purchase them. Similarly, Medrano stated that, in his dealings with appellant, appellant never refused to purchase any of the cocaine he had to sell him. There was also evidence of the phone conversation between appellant and Medrano in which appellant said he was coming to pick up “two” of something on the day of his arrest. Medrano testified that this conversation was about appellant picking up two kilograms of cocaine.
{¶ 19} Based on
{¶ 20} Appellant also argues that there was insufficient evidence to prove that he “knowingly” attempted to possess cocaine because there was no evidence that he ever had actual or constructive possession of the cocaine. The state was required to prove beyond a reasonable doubt that defendant knowingly attempted to possess drugs. “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature.”
{¶ 21} Possession of a controlled substance may be actual or constructive. State v. Mann, 93 Ohio App.3d 301, 308 (8th Dist.1993). A person has actual possession of an item when it is within his immediate physical control. State v. Messer, 107 Ohio App.3d 51, 56 (9th Dist.1995). Constructive possession exists when a person knowingly exercises dominion and control over an object, even though the object may not be within the person‘s immediate physical possession. State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus. Circumstantial evidence alone is sufficient to support the element of constructive possession. State v. Jenks, 61 Ohio St.3d 259, 272 (1991). “Constructive possession can be inferred from a totality of the evidence where sufficient evidence, in addition to proximity, supports dominion or control over the contraband.” State v. Norman, 10th Dist. No. 03AP-298, 2003-Ohio-7038, ¶ 31, citing State v. Johnson, 9th Dist. No. 14371 (July 11, 1990).
{¶ 22} In the present case, the evidence in the record is sufficient to prove that appellant attempted to exercise dominion and control over the drugs. The testimony of
{¶ 23} Appellant argues in his second assignment of error that the trial court erred in its sentencing of appellant. Appellant contends that the prosecutor committed misconduct by bringing up, during the sentencing hearing, that appellant, during his proffer, made certain statements to the prosecution. Appellant maintains that, in each proffer letter submitted by the prosecutor‘s office for signature by a defendant who is proffering, the standard language states that any information disclosed by a defendant will not be used against him in any criminal proceeding. Thus, the prosecutor‘s use of appellant‘s statements made in the proffer were in violation of the agreement.
{¶ 24} When portions of the transcript necessary for resolution of assigned errors are omitted from the record we have no choice but to presume the validity of the lower court‘s proceedings and affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980); see also Tyrrell v. Investment Assoc., Inc., 16 Ohio App.3d 47 (8th Dist.1984). In the absence of all the relevant evidence, a reviewing court must indulge the presumption of regularity of the proceedings and the validity of the judgment in the trial court. It is the appellant‘s responsibility to include all the evidence in the appellate record so that the claimed error is demonstrated to the reviewing court. Bates & Springer, Inc. v. Stallworth, 56 Ohio App.2d 223 (8th Dist.1978); see also
{¶ 25} The only reference in the record regarding the proffer was from the prosecutor who said the state was prohibited from using the proffer at trial but not at sentencing. However, without the proffer we have no way of making a determination about whether the prosecutor improperly introduced the evidence at sentencing.
{¶ 26} Accordingly, appellant‘s two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BRYANT and TYACK, JJ., concur.
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