2005 Ohio 1597 | Ohio Ct. App. | 2005
{¶ 2} Dayton police obtained and executed a search warrant for drugs and related contraband at 1916 N. James H. McGee Boulevard, Apt. E, in Dayton. Defendant was named in that warrant. After police arrived on the scene, several people standing around outside began yelling "police and five-0." Officers made a forcible entry into the apartment. They discovered several people including Defendant, who ran into one of the bedrooms and shut the door. Officers outside watching the rear of the apartment observed a man, later identified as Defendant by the distinctive yellow and brown striped shirt he wore, drop a purse out of a second floor bedroom window. The purse was recovered and discovered to contain heroin, cocaine, marijuana and other drugs.
{¶ 3} Police forced an entry into the bedroom into which Defendant had run. They found Defendant and a female inside the room. Police discovered crack cocaine and syringes under the chair cushion where the female was sitting. Two plates with heroin residue were also found in that bedroom. The female had $1,688 in cash on her person and Defendant had $3,667 in cash on his person. Numerous drugs, two loaded firearms, and a set of digital scales were found in various locations in the apartment.
{¶ 4} Based upon his having dropped the purse containing drugs out of the bedroom window during the raid, Defendant was indicted on one count of possessing heroin (over ten but less than fifty grams), R.C.
{¶ 5} Defendant timely appealed to this court from his conviction and sentence.
{¶ 6} First Assignment of Error
{¶ 7} "The trial court erred when it imposed the maximum sentence of actual incarceration."
{¶ 8} The trial court imposed maximum sentences for each of three felony offenses of which Defendant-Appellant was convicted, all of which arose out of the same incident. Therefore, he invokes our review as a matter of right. R.C
{¶ 9} The trial court imposed the maximum prison term authorized for each offense and ordered that those sentences be served concurrently. Before imposing the longest prison term authorized for an offense, the trial court must make one of the findings set out in R.C.
{¶ 10} Defendant does not argue that the trial court failed to make the necessary statutory finding in R.C.
{¶ 11} Defendant argues that the record does not support the reasons the trial court gave for its finding that he had committed the worst form of the possession offenses of which he was convicted; that he is a drug dealer, evidenced by the fact that he had over $3,000 in cash on his person and four types of narcotics in his possession, that is, in the purse he discarded. Defendant argues that the court necessarily relied on facts that would support a discrete type of offense, trafficking in drugs, of which he was neither indicted nor convicted.
{¶ 12} Except for the collateral purposes identified in Evid.R. 404(B), evidence of conduct which might constitute criminal offenses other than the particular offenses of which an accused was indicted is inadmissible to prove his guilt on those charges. The bar is grounded in the fundamental protections of constitutional due process. The same does not necessarily apply to the considerations the court brings to a sentencing decision, however.
{¶ 13} A sentencing court is charged to be guided by the purposes and principles of sentencing in R.C.
{¶ 14} Whether certain statutory findings a court must make in order to impose a sentence must instead be found by a jury has been called into question. See Blakely v. Washington (2004), 642 U.S. ___,
{¶ 15} Criminal liability requires proof of a voluntary act or omission committed with a prescribed degree of culpability, which together the law expressly prohibits. R.C.
{¶ 16} In the present case, the considerable cash Defendant had on his person and the heroin and cocaine he possessed and attempted to discard reasonably and logically demonstrate that he was in the business of selling such drugs. He was convicted of possession only, but possession of drugs in order to sell them to others, and not for one's own use, is the worst form of possession, particularly when the addictive and debilitating quality of the drugs concerned is especially virulent, as these are.
{¶ 17} We cannot clearly and convincingly find that the record does not support the trial court's finding that Defendant was convicted of the "worst form of the offense(s)" of possession in violation of R.C.
{¶ 18} The trial court made two further findings to support the maximum sentences it imposed: that Defendant poses the greatest likelihood of reoffending, based on his record of convictions and his lack of remorse. Defendant points out that not all of his prior conviction were drug-related, and that approximately ten years had passed since his last conviction. That is not especially persuasive, inasmuch as a good amount of that time he spent in prison. As for his lack of remorse, Defendant's sole response to the court's allocution invitation was a sullen complaint about his attorney. (T. 249). His lack of remorse is manifest.
{¶ 19} The first assignment of error is overruled.
{¶ 20} Second Assignment of Error
{¶ 21} "The evidence that appellant knowingly possessed heroine and cocaine in the specified amounts was insufficient as a matter of law."
{¶ 22} Defendant argues that the evidence is legally insufficient to prove that he "knowingly" possessed heroin and cocaine because the evidence fails to demonstrate that he knew the types and amounts of drugs that were in the purse he threw out of the window.
{¶ 23} A sufficiency of the evidence argument challenges whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law. Thompkins, supra. The proper test to apply to such an inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks (1991),
{¶ 24} "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to 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."
{¶ 25} The requirements for criminal liability are (1) conduct that includes a voluntary act and (2) the requisite degree of culpability specified by the statute defining the offense. R.C.
{¶ 26} "Knowingly" is defined in R.C.
{¶ 27} "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. A person has knowledge of circumstances when he is aware that such circumstances probably exist."
{¶ 28} "Possession" includes both actual and constructive possession and is defined in R.C.
{¶ 29} "`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."
{¶ 30} "Controlled substance" is defined in R.C.
{¶ 31} R.C.
{¶ 32} Possession of both heroin and cocaine is generally a fifth degree felony. See: R.C.
{¶ 33} The identity of the controlled substance and the amount of it possessed both determines the degree of the offense charged and elevates the punishment available for it. Therefore, due process requires the State to charge those matters specifically in the indictment and to prove the matters charged beyond a reasonable doubt at trial. State v. Allen
(1987),
{¶ 34} In proving knowing possession of a controlled substance in violation of R.C.
{¶ 35} In arguing that the State was obligated to prove that Defendant knew the type and amount of drugs contained in the purse, Defendant relies upon State v. Allen (1999),
{¶ 36} The purse containing controlled substances was thrown from the window as police entered the home to execute a search warrant for drugs. The parties stipulated that laboratory analysis revealed that the substances in the purse were heroin and cocaine in the amounts specified in the indictment. Whoever threw the purse from the window obviously possessed it and its contents, at least for the purpose of throwing it. The jury could reasonably infer that Defendant was the person who threw the purse because he was found, moments later, inside the upstairs bedroom from which the purse was thrown, wearing the same distinctive yellow and brown striped shirt as the person who threw the purse.
{¶ 37} The State was required to prove that Defendant knowingly possessed a controlled substance. Knowledge must be determined from all the facts and circumstances surrounding the incident. State v. Teamer,
{¶ 38} The second assignment of error is overruled.
{¶ 39} Third Assignment of Error
{¶ 40} "The jury verdict was against the manifest weight of the evidence."
{¶ 41} A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563, unreported. The proper test to apply to that inquiry is the one set forth in State v. Martin (1983),
{¶ 42} "[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Accord: State v.Thompkins,
{¶ 43} The credibility of the witnesses and the weight to be given to their testimony is a matter for the trier of facts, the jury here, to resolve. State v. DeHass (1967),
{¶ 44} "[b]ecause the factfinder . . . has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder's determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness." Id., at p. 4.
{¶ 45} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict.State v. Bradley (Oct. 24, 1997), Champaign App.
{¶ 46} In arguing that his conviction is against the manifest weight of the evidence, Defendant points out that the only evidence connecting him to the purse full of drugs is the testimony of Det. Barnett.
{¶ 47} As police were entering the front of the apartment to execute their search warrant for drugs, Det. Barnett, who was positioned at the rear of the building, observed a second story bedroom window open and the arm of an African-American male who wore a yellow and brown striped shirt reach out the window and then drop a purse onto the ground. After opening the purse and finding drugs inside, Det. Barnett immediately entered the apartment and went to the bedroom from which the purse was thrown, where Det. Barnett discovered Defendant, who is an African-American male and who wore a yellow and brown striped shirt. Defendant argues that the testimony of Det. Barnett is not worthy of belief because of a discrepancy among the police officers as to whether Defendant's shirt was short or long sleeved. Such discrepancies are trivial at best. In any event, the credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve. DeHass,supra.
{¶ 48} Furthermore, contrary to Defendant's assertion, the State's theory of this case is not contradictory. Defendant's motive and purpose in throwing the purse out of the window under the facts and circumstances shown is obvious: to get the drugs in that purse out of the apartment and conceal them from police during this drug raid, both ridding himself of contraband and impairing its availability as evidence. In order to throw the purse and its contents out of the window Defendant obviously had to possess it; that is, exercise actual physical control over it. That is far more than mere access to the purse and its contents. Moreover, the timing of Defendant's throwing the purse out of the window, as police were forcibly entering the apartment to execute a search warrant for drugs, permits a reasonable inference that Defendant knew or was aware that the purse he discarded probably contained drugs. R.C.
{¶ 49} In reviewing this record as a whole, we cannot say that the evidence weighs heavily against a conviction, that the jury lost its way, or that a manifest miscarriage of justice occurred. Defendant's conviction is not against the manifest weight of the evidence.
{¶ 50} The third assignment of error is overruled.
{¶ 51} Fourth Assignment of Error
{¶ 52} "The trial court improperly admitted evidence of Firearms, Illicit drugs, and other contraband."
{¶ 53} Defendant argues that the trial court erred in admitting evidence concerning various items of contraband found in the apartment during the drug raid, including numerous drugs, electronic scales and two loaded firearms, because these items were never connected to Defendant and do not form any part of the charges against him. Defendant additionally complains about the admission of the $3,667 in cash found on his person at the time of his arrest. Defendant claims that whatever minimal probative value these other items of contraband may have had relative to his drug possession charges was far outweighed by the danger of unfair prejudice, and thus this evidence should have been excluded.
Evid.R. 403(A).
{¶ 54} Defendant further contends that the prosecutor used these other items of contraband found in the apartment and the large sum of money found on Defendant's person as a foundation to suggest that Defendant is a drug dealer who was acting in conformity with that bad character on this particular occasion, in violation of Evid.R. 404(B).
{¶ 55} With respect to the admission or exclusion of evidence, the trial court has broad discretion and its decision in such matters will not be disturbed by a reviewing court absent an abuse of discretion that has caused material prejudice. State v. Noling,
{¶ 56} Evid.R. 403(A) provides:
{¶ 57} "Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."
{¶ 58} Evid.R 404(B) states:
{¶ 59} "Other crimes, wrongs or acts. Evidence of the other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
{¶ 60} Where, as in this case, the collateral matters in Evid.R. 404(B) such as knowledge and plan are at issue in the case, evidence probative of them is admissible per Evid.R. 404(B) to prove the offense charged, notwithstanding that the same evidence might also prove another, uncharged offense. Of course, the trial court must exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. Evid.R. 403(A).
{¶ 61} The State was obligated to prove that Defendant knew or was probably aware that the purse he had in his possession and threw out of the window during this drug raid contained controlled substances. It is common knowledge that in locations where drug activity is prevalent, drugs, scales, weapons and large sums of money are often present. The Ohio Supreme Court has recognized that a connection exists between drugs and guns to such an extent that if drugs are present, it is reasonable to assume that weapons may also be present and the suspect(s) may be armed.State v. Evans,
{¶ 62} With respect to the various drugs and guns found inside the apartment during this drug raid, much of which was out in the open, the trial court admitted those items of evidence over Defendant's objection. That evidence was relevant and admissible per Evid.R. 404(B) to prove that Defendant knew or was probably aware that the purse he possessed and attempted to conceal by throwing it out the window contained controlled substances. Furthermore, the probative value of this evidence in demonstrating that Defendant knew the purse contained controlled substances is not substantially outweighed by the concerns enumerated in Evid.R. 403(A). Those matters are largely avoided in this case. During cross-examination of the State's witnesses, Defendant clearly established that the drugs, guns and other contraband police found in various locations throughout the apartment were not otherwise linked to Defendant. No abuse of discretion is demonstrated with respect to the trial court's admission of the drugs and guns found in the apartment.
{¶ 63} With respect to the $3,667 in cash found on Defendant's person and the set of digital scales found in the apartment, that evidence was also relevant and admissible per Evid.R. 404(B) to show that Defendant's plan or purpose was to possess these drugs in order to sell them. Its admissibility for that purpose is not affected by the fact that Defendant was not charged with drug trafficking. In any event, Defendant did not object to the trial court's admission of the money or the scales, and accordingly he has waived all but "plain error." State v. Wickline
(1990),
{¶ 64} The fourth assignment of error is overruled. The judgment of the trial court will be affirmed.
Wolff, J. and Fain, J., concur.
