State v. WatersState v. Waters
Michael A. Partlow, Morganstern, MacAdams & DeVito Co., L.P.A., 623 West St. Clair Avenue, Cleveland, OH 44113-1204 (For Defendant-Appellant).
MARY JANE TRAPP, P.J.
{¶1} Eddie Waters appeals from a judgment of the Trumbull County Court of Common Pleas convicting him of two counts of possession of drugs following a jury trial. On appeal, he claims the trial court improperly excluded testimony he wished to present to show his adult daughter owned the drugs pursuant to a prescription. Because there is no evidence linking the drugs found on his person to any prescription, we conclude the trial court did not abuse its discretion in excluding the evidence.
{¶2} Substantive Facts and Procedural History
{¶4} A grand jury indicted him on (1) failure to comply with order or signal of police officer in violation of
{¶5} Before trial, the state filed a motion in limine to exclude testimony which Mr. Waters sought to present to the jury to show the Methadone and Hydrocodone pills were not his but his daughter‘s, and he was merely bringing the drugs to her. The state argued the statute prohibits any knowing possession of a controlled substance, and therefore the fact that he did not own the drugs, even if proven, could not be an affirmative defense. The state argued any probative value of the testimony to show he
{¶6} Before trial, the court considered the state‘s motion in limine and granted it on the ground that the essential element of the offense is possession, not ownership. The court pointed out the name on the pill bottle was completely removed, noting that “the entire piece of paper in the area that would identify the person whose drugs these were was completely missing,” and therefore there was no indication as to the name of the person to whom the drugs were prescribed.
{¶7} Mr. Waters, who had been previously convicted of and served time for aggravated robbery, possession of drugs, and trafficking in drugs, testified that his adult daughter had a throat surgery and recuperated at his house in Warren for two weeks. On August 28, 2006, he was bringing the drugs to his daughter in Canton. Because his girlfriend refused to drive him there, he took the car over her objections, even though his driver‘s license was suspended. Mr. Waters stated the pills found on him were Vicodin and “that‘s what my daughter is prescribed,” despite the pretrial ruling that any testimony regarding a prescription was not permitted. The state objected to that statement, and the trial court admonished Mr. Waters for testifying about a prescription and instructed the jury to disregard it.
{¶8} The jury found him guilty of aggravated possession of drugs for his possession of Methadone, and possession of drugs for his possession of Hydrocodone, for which he was sentenced to 12 months and 60 days of incarceration, respectively. On appeal, he assigns the following error for our review:
{¶10} Analysis
{¶11}
{¶12} “(A) No person shall knowingly obtain, possess, or use a controlled substance.
{¶13} “(B) This section does not apply to any of the following:
{¶14} “***.
{¶15} “(4) Any person who obtained the controlled substance pursuant to a lawful prescription issued by a licensed health professional authorized to prescribe drugs.”
{¶16} “The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Kimble, 11th Dist. No. 2005-T-0086, 2006-Ohio-6863, ¶8, quoting State v. Sage (1987), 31 Ohio St.3d 173, 31, paragraph two of the syllabus. “A trial court‘s decision to exclude evidence will not be overturned absent an abuse of discretion. An abuse of discretion implies that the trial court‘s decision was ‘arbitrary, unreasonable or unconscionable.‘” Id. (internal citations omitted).
{¶17} By its plain language,
{¶18} “(K) ‘Possess’ or ‘possession’ means 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.”
{¶19} Possession of drugs can be either actual or constructive. See State v. McGhee, 3rd Dist. No. 13-08-12, 2009-Ohio-4259, ¶19. A person has “actual possession” of an item if the item is “within his immediate physical possession.” State v. Fugate (Oct. 2, 1998), 4th Dist. No. 97 CA 2546, 1998 Ohio App. LEXIS 4846, *20. A person has “constructive possession” when that person “knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession.” State v. Hankerson (1982), 70 Ohio St.2d 87, syllabus.
{¶20} Here, the Hydrocodone and Methadone pills were found on Mr. Waters’ person, and therefore he had actual possession, rendering “possession” a non-issue in this case. Mr. Waters attempted to establish an affirmative defense by way of testimony showing that another individual “owned” the drugs. We note in determining possession, ownership need not be established. “A person may indeed control or possess property belonging to another.” State v. Mann (1993), 93 Ohio App.3d 301, 308. Therefore, the only evidence relevant to whether Mr. Waters committed the offense prohibited by
{¶21}
{¶22} Mr. Waters cites to State v. Collier (1991), 62 Ohio St.3d 267 for our consideration. In this 1991 case, the Supreme Court of Ohio reviewed the constitutionality of
{¶23} The dissent in Collier, however, found the statute unconstitutionally vague, believing it failed to provide a standard “by which the ordinary person or law
{¶24} The dissent pointed out the following fact patterns where a person would be subjected to prosecution under the statute: when a person emptied prescription drugs from the bottle into his hand before swallowing them; took pills from the bottle and carried them to the kitchen or bathroom; or carried medication in a pillbox, pocket, or coin purse throughout the day, the week, or on a trip. Id. The majority in Collier, however, was not troubled by these scenarios and found the statute constitutional.
{¶25}
{¶26} In any event, we are not called upon in this appeal to review whether current
{¶27} For the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with Dissenting Opinion.
{¶28} I respectfully dissent.
{¶29} The majority contends that the trial court did not abuse its discretion by excluding testimony purportedly showing another individual obtained the drugs found on Mr. Waters’ person pursuant to a prescription. I disagree.
{¶30}
{¶31} “(A) No person shall knowingly obtain, possess, or use a controlled substance.
{¶32} “(B) This section does not apply to any of the following:
{¶33} “***
{¶34} “(4) Any person who obtained the controlled substance pursuant to a lawful prescription issued by a licensed health professional authorized to prescribe drugs.”
{¶36} “Police officers, prosecutors, and courts determine that the [Eddie Waters] of our society are in violation of
{¶37} Selective application and enforcement of statutes is a dangerous and slippery slope upon which to embark. The act of bringing someone lawfully prescribed medication occurs each and every day. The trial court correctly interpreted a violation of the statute equates to a crime wherein the mens rea is that of strict liability and that the defendant‘s relationship or reason for possessing these prescribed medications is not an element of the offense. The trial court as well as society acknowledge that the defense of lawfully prescribed medication being transported by a person other than the person‘s whose name is on the bottle occurs many times a day. Furthermore, there is
{¶38} For the foregoing reasons, I dissent.