2005 Ohio 3233 | Ohio Ct. App. | 2005
{¶ 2} On August 29, 2003 officers of the Logan County Sheriff's Office obtained a warrant to search the apartment of Amy Dunn. Two days prior, the police had conducted a controlled buy at the apartment with the help of a confidential informant. The informant had purchased cocaine from someone out of that apartment whom he knew to be Dunn's boyfriend.
{¶ 3} Six officers came to the apartment to execute the search warrant. They arrived and found that the door to the apartment was locked. The officers knocked on the door, and a black male answered, who was later identified as Michael Sparks. The officers identified themselves and told Sparks they were there to execute a warrant, at which point he slammed the door shut. The officers forcibly opened the apartment door and found three males inside a small studio apartment. They secured the individuals, who, according to police testimony at trial, identified themselves as Michael Sparks, Shawn Lamarr, and "Alonzo Gilbert." In the apartment they also found large quantities of crack cocaine on a plate on the bed, and a box of sandwich bags next to it. Another sandwich bag of cocaine was found in the closet. There were also large sums of cash found scattered about the apartment and on the three individuals. In total, the record indicates that 16.95 grams of cocaine were found in the apartment, as well as $2455 dollars, $615 of which was found on the person identified as "Alonzo Gilbert." The three males were arrested and transported to the Sheriff's Office. Upon questioning, Gilbert was identified as the defendant, Antonio Smith.
{¶ 4} On December 9, 2003 Smith was indicted on one count of possession of drugs in violation of R.C.
The State of Ohio failed to produce sufficient evidence as to allessential elements of the offense. The acts and omissions of the trial counsel deprived Antonio Smith ofthe effective assistance of counsel. The trial court's imposition of a sentence greater than the statutoryminimum was contrary to law.
{¶ 5} In his first assignment of error, Smith argues that the State presented insufficient evidence to prove the essential elements of possession. The Ohio Supreme Court has set forth a test to determine whether the evidence submitted in a trial was sufficient for the trier of fact to determine a crime had been proven beyond a reasonable doubt. SeeState v. Jenks (1991),
{¶ 6} In order to prove possession of drugs, the State must show that Smith "knowingly obtain[ed], possess[ed], or use[d] a controlled substance." R.C.
{¶ 7} In the instant case, the sole evidence presented by the prosecution was that Smith was found in a small, one-room apartment where cocaine was located. No drugs were found on his person, and the State conceded that it was impossible to prove who provided the cocaine. Moreover, there was no evidence presented that Smith had used cocaine. We find that the evidence presented establishing Smith's presence at the scene was insufficient to prove that he exercised control over the cocaine. See City of Cincinnati (1971),
{¶ 8} However, the State argued in this case that Smith was guilty of aiding and abetting. The State's theory was that each of the three males was complicit in the possession of drugs, due to the small size of the apartment and the fact that the drugs and the money were found in plain view scattered across various parts of the room. It is well-settled law that the prosecution may advance a complicity theory even though a criminal defendant was indicted as the principal offender. R.C.
{¶ 9} The prosecutor argued at trial that Smith was guilty as an accomplice by aiding and abetting the principal. See R.C.
{¶ 10} Once again, the only evidence presented by the State was that Smith was in a small room where cocaine was out in plain view. There was no evidence presented demonstrating that Smith was involved in packaging, distributing, or selling the cocaine in any way, or that Smith had provided the cocaine to the others. Evidence that Smith was at the location where an offense took place is insufficient to demonstrate complicity: "the mere presence of an accused at the scene of a crime is not sufficient to prove, in and of itself, that the accused was an aider and abettor." State v. Widner (1982),
{¶ 11} Therefore, although there was evidence in the record demonstrating Smith's presence at the scene, there was insufficient evidence presented to prove that he supported, assisted, encouraged, cooperated with, advised, or incited the principal. Accordingly, the evidence was insufficient to prove the essential elements of complicity. Based on the foregoing, appellant's first assignment of error is sustained. The judgment of the lower court is reversed and the matter is remanded to the trial court for vacation of appellant's conviction and sentence.
{¶ 12} In light of our resolution of appellant's first assignment of error, we need not address appellant's second and third assignments of error. See App.R. 12(A)(1)(c).
Judgment reversed and cause remanded. Bryant and Rogers, JJ., concur.