State v. Bradshaw , 2018 Ohio 1105 ( 2018 )

[Cite as State v. Bradshaw, 2018-Ohio-1105.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 17CA3803
vs. :
GARVIN S. BRADSHAW, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
S. Andrew Sturgill, Portsmouth, Ohio, for appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant
Prosecuting Attorney, Portsmouth, Ohio, for appellee.
_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 3-9-18
ABELE, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of
conviction and sentence. A jury found Garvin S. Bradshaw, defendant below and appellant
herein, guilty of three offenses: (1) trafficking in heroin, in violation of R.C. 2925.03(A)(2); (2)
possession of heroin, in violation of R.C. 2925.11(A); and (3) tampering with evidence, in
violation of R.C. 2921.12(A)(1).
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
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“THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF
LAW TO CONVICT APPELLANT OF TAMPERING WITH
EVIDENCE AS INDICTED; OR IN THE ALTERNATIVE, THE
CONVICTION OF TAMPERING WITH EVIDENCE WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
SECOND ASSIGNMENT OF ERROR:
“THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF
LAW TO CONVICT APPELLANT OF EITHER CHARGE OF
POSSESSION OF HEROIN OR TRAFFICKING IN HEROIN AS
INDICTED; OR, IN THE ALTERNATIVE, THE CONVICTIONS
OF POSSESSION OF HEROIN AND TRAFFICKING IN
HEROIN WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶ 3} After a Scioto County grand jury returned an indictment that charged appellant
with trafficking in heroin, possession of heroin, and tampering with evidence, appellant entered
not guilty pleas. The trial court later held a jury trial.
{¶ 4} At trial, Matthew Mathias, appellant’s parole officer, testified that he arrested
appellant “pending an investigation of violations.” Mathias did not elaborate upon the nature of
the violations. However, Mathias stated that before he placed appellant in a vehicle to transport
him to jail, Mathias checked the vehicle's backseat for any items or contraband. Mathias then
asked appellant whether he had anything on him, and appellant stated that he did not. Mathias
patted down appellant and did not locate any contraband. Mathias indicated that he “tr[ies] to
make it a standard practice to remind [arrestees] that they are going into custody, they don’t want
to catch any other charges, and [appellant] said he ha[d] nothing else on him.”
{¶ 5} Mathias testified that after appellant exited the vehicle at the jail, Mathias’s
supervisor, Parole Services Supervisor Matthew Stuntebeck, saw appellant throw something in
the trash. Stuntebeck retrieved the item that looked like a cigarette wrapper. Mathias stated
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that Stuntebeck asked appellant about the item, and appellant responded that “it was some dope *
* * [and] that he was taking it to a guy in the Ville.”1
{¶ 6} Stuntebeck testified that he was present during appellant’s arrest and helped
transport him to the jail. Stuntebeck explained that he and Mathias arrested appellant “pending
an investigation * * * for a potential parole violation.”2
{¶ 7} Stuntebeck stated that he, like Mathias, generally informs arrestees “that it’s
potentially another felony charge if they do convey something into a detention facility and can
lead to further violations, as well as potentially new charges.” Stuntebeck indicated that he
asked appellant if he had “anything else” that might “get [him] in trouble.” Appellant said that
he did not. Stuntebeck stated that before he placed appellant in the transport vehicle, he
personally inspected the backseat to ensure that it did not contain any contraband.
{¶ 8} Stuntebeck explained that when they arrived at the jail, he walked over to help
appellant out of the car. As he did so, he noticed that appellant appeared to be “fidgeting.”
Stuntebeck testified that once appellant exited the vehicle, Stuntebeck saw “something in
[appellant’s] hand and [he] kind of had his hands in the back of his pants.”
{¶ 9} Stuntebeck related that as they approached the door to the jail, appellant dropped
something in the trash can. Stuntebeck retrieved the item and discovered that it was a “really
thin smashed Pall Mall cigarette package” that contained a powdery substance wrapped inside a
small plastic bag. Stuntebeck asked appellant what it was, and appellant stated it was “dope.”
1
The testimony indicates that the “Ville” is a specific neighborhood located within Portsmouth, Ohio.
2
Appellant’s brief indicates that the officers were investigating him for community control violations. The
state did not present any evidence regarding the alleged violations. For the sake of consistency, however, we use the
terminology the officers used at trial and will thus refer to the investigation as involving parole violations.
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Stuntebeck next inquired whether it was heroin, and appellant responded, “Yeah, something like
that.” Stuntebeck explained that appellant indicated that “he was going to take it to some guy in
the Ville to deliver.”
{¶ 10} After the state rested, appellant moved for a Crim.R. 29 judgment of acquittal
regarding the tampering with evidence charge. He asserted that the state failed to present
evidence showing that appellant tampered with evidence related to an ongoing or likely
investigation into alleged drug activity. Appellant alleged that no evidence indicated that he
knew the officers were investigating, or likely to investigate, appellant for drug activity.
Appellant claimed that without evidence that the officers suspected him of drug activity, the state
could not show that he tampered with evidence relating to an ongoing or likely investigation.
{¶ 11} The state countered that appellant knew the officers were investigating him for
violating parole and that the investigation did not end at the jail-house doors. The state further
argued that the officers warned appellant about the consequences of carrying contraband into the
jail, and that warning gave appellant knowledge that an investigation into whether he was
carrying contraband was likely. The trial court overruled appellant’s motion.
{¶ 12} The jury subsequently found appellant guilty of all three offenses as charged in the
indictment. The trial court (1) merged appellant’s trafficking in heroin and possession of heroin
convictions and ordered appellant to serve twelve months in prison for trafficking in heroin, (2)
sentenced appellant to serve thirty-six months in prison for his tampering with evidence, and (3)
further ordered that the sentences be served consecutively to one another for a total of forty-eight
months. This appeal followed.
I
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{¶ 13} Appellant’s first and second assignments of error assert that the state failed to
present sufficient evidence to support his convictions, or alternatively, that his convictions are
against the manifest weight of the evidence. For ease of discussion, we first set forth the
standards that apply to both assignments of error.
{¶ 14} We initially observe that “sufficiency” and “manifest weight” present two distinct
legal concepts. Eastley v. Volkman, 132 Ohio St. 3d 328, 2012–Ohio–2179, 972 N.E.2d 517,
¶23 (stating that “sufficiency of the evidence is quantitatively and qualitatively different from the
weight of the evidence”); State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (1997),
syllabus. A claim of insufficient evidence invokes a due process concern and raises the question
whether the evidence is legally sufficient to support the verdict as a matter of law. Thompkins,
78 Ohio St. 3d at 386. When reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable doubt. Id. at syllabus. The
standard of review is whether, after viewing the probative evidence and inferences reasonably
drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could
have found all the essential elements of the offense beyond a reasonable doubt. E.g., Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Jenks, 61 Ohio St
.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a reviewing court is not to assess “whether
the state’s evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction.” Thompkins, 78 Ohio St. 3d at 390 (Cook, J., concurring).
{¶ 15} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court
must construe the evidence in a light most favorable to the prosecution. E.g., State v. Hill, 75
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Ohio St. 3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St. 3d 465, 477, 620
N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a
sufficiency-of-the-evidence claim unless reasonable minds could not reach the conclusion that
the trier of fact did. State v. Tibbetts, 92 Ohio St. 3d 146, 162, 749 N.E.2d 226 (2001); State v.
Treesh, 90 Ohio St. 3d 460, 484, 739 N.E.2d 749 (2001).
{¶ 16} “Although a court of appeals may determine that a judgment of a trial court is
sustained by sufficient evidence, that court may nevertheless conclude that the judgment is
against the weight of the evidence.” Thompkins, 78 Ohio St. 3d at 387. When an appellate
court considers a claim that a conviction is against the manifest weight of the evidence, the court
must dutifully examine the entire record, weigh the evidence and all reasonable inferences, and
consider the witness credibility. State v. Dean, 146 Ohio St. 3d 106, 2015–Ohio–4347, 54
N.E.3d 80, ¶151, citing Thompkins, 78 Ohio St. 3d at 387. A reviewing court must bear in mind,
however, that credibility generally is an issue for the trier of fact to resolve. State v. Issa, 93
Ohio St. 3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953,
2008–Ohio–1744, ¶31. “‘Because the trier of fact sees and hears the witnesses and is particularly
competent to decide “whether, and to what extent, to credit the testimony of particular
witnesses,” we must afford substantial deference to its determinations of credibility.’” Barberton
v. Jenney, 126 Ohio St. 3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶20, quoting State v. Konya,
2nd Dist. Montgomery No. 21434, 2006–Ohio–6312, ¶6, quoting State v. Lawson, 2nd Dist.
Montgomery No. 16288 (Aug. 22, 1997). As the court explained in Eastley :
“‘[I]n determining whether the judgment below is manifestly against the
weight of the evidence, every reasonable intendment must be made in favor of the
judgment and the finding of facts. * * *
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If the evidence is susceptible of more than one construction, the reviewing court is
bound to give it that interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and judgment.’”
Id. at ¶21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273
(1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
Thus, an appellate court will leave the issues of weight and credibility of the evidence to the
fact-finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer,
4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶24; accord State v. Howard, 4th Dist. Ross
No. 07CA2948, 2007–Ohio–6331, ¶6 (“We will not intercede as long as the trier of fact has
some factual and rational basis for its determination of credibility and weight.”).
{¶ 17} Once the reviewing court finishes its examination, the court may reverse the
judgment of conviction only if it appears that the fact-finder, when resolving the conflicts in
evidence, “‘clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’” Thompkins, 78 Ohio St. 3d at 387,
quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). If the
prosecution presented substantial credible evidence upon which the trier of fact reasonably could
conclude, beyond a reasonable doubt, that the essential elements of the offense had been
established, the judgment of conviction is not against the manifest weight of the evidence. E.g.,
State v. Eley, 56 Ohio St. 2d 169, 383 N.E.2d 132 (1978), syllabus, superseded by state
constitutional amendment on other grounds in State v. Smith, 80 Ohio St. 3d 89, 684 N.E.2d 668
(1997). Accord Eastley at ¶12, quoting Thompkins, 78 Ohio St. 3d at 387, quoting Black’s Law
Dictionary 1594 (6th ed.1990) (explaining that a judgment is not against the manifest weight of
the evidence when “‘“the greater amount of credible evidence”’” supports it). A reviewing court
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should find a conviction against the manifest weight of the evidence only in the “‘exceptional
case in which the evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St. 3d
at 387, quoting Martin, 20 Ohio App. 3d at 175. Accord State v. Lindsey, 87 Ohio St. 3d 479,
483, 721 N.E.2d 995 (2000).
II
{¶ 18} In his first assignment of error, appellant asserts that the state did not present
sufficient evidence to support his tampering with evidence conviction, or alternatively, that his
conviction is against the manifest weight of the evidence. In particular, appellant contends that
the state failed to present any evidence to show that the evidence he allegedly tampered with,
heroin, related to an ongoing or likely investigation regarding the possession of or trafficking in
heroin. Appellant claims that at the time he allegedly disposed of the heroin, the only
investigation concerned his alleged parole violations. Because appellant contends that the state
did not present any evidence that his alleged violations involved drug-related offenses or that the
heroin related to his alleged parole violations, appellant thus argues that the evidence allegedly
tampered with, heroin, did not bear any relation to an ongoing or likely investigation. He
therefore asserts that because the evidence fails to show a pending or likely investigation into his
alleged drug-related activity, the evidence is legally insufficient to support his tampering with
evidence conviction.
{¶ 19} The tampering with evidence statute provides:
(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such proceeding or
investigation;
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To support a conviction for tampering with evidence under R.C. 2921.12(A)(1), the state must
establish, beyond a reasonable doubt, that the defendant (1) knew “of an official proceeding or
investigation in progress or likely to be instituted,” (2) altered, destroyed, concealed, or removed
“the potential evidence,” and (3) possessed a purpose to impair “the potential evidence’s
availability or value in such proceeding or investigation.” State v. Straley, 139 Ohio St. 3d 339,
2014-Ohio-2139, 11 N.E.3d 1175, ¶11.
A
{¶ 20} The first element requires the state to establish that at the time of concealment, the
defendant knew “of an official proceeding or investigation in progress or likely to be instituted.”
State v. Barry, 145 Ohio St. 3d 354, 2015-Ohio-5449, 49 N.E.3d 1248, ¶2. “The likelihood of an
investigation is measured at the time of the alleged tampering.” State v. Martin, — Ohio St.3d
—, 2017-Ohio-7556, — N.E.3d —, ¶110, citing Straley at ¶19, and Barry at ¶21.
{¶ 21} R.C. 2901.22(B) defines when a person acts “knowingly.” The statute states:
A person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will probably be
of a certain nature. A person has knowledge of circumstances when the person is
aware that such circumstances probably exist. When knowledge of the existence
of a particular fact is an element of an offense, such knowledge is established if a
person subjectively believes that there is a high probability of its existence and
fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
{¶ 22} This means that the defendant must be “aware that conduct will probably cause a
certain result or will probably be of a certain nature or that circumstances probably exist.” Barry
at ¶24 (emphasis sic). Furthermore, R.C. 2901.22(B) “provides that a person can be charged
with knowledge of a particular fact only if that person ‘subjectively believes that there is a high
SCIOTO, 17CA3803 10
probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid
learning the fact.’” Id. (emphasis sic), quoting R.C. 2901.22(B). Accordingly, the definition of
“knowingly” does not encompass knowledge that a reasonably diligent person should, but does
not, have.” Id. (emphasis sic). Consequently, “constructive knowledge is insufficient to prove
that [an accused] knew that an investigation was ongoing or likely to be commenced.” Id. at
¶25. “Ohio law does not impute constructive knowledge of an impending investigation based
solely on the commission of an offense.” Id. at ¶2.
{¶ 23} However, “knowledge of a likely investigation may be inferred when the
defendant commits a crime that is likely to be reported.” Martin at ¶118 (emphasis sic). For
instance, knowledge may be inferred in homicide cases because “[h]omicides are highly likely to
be discovered and investigated,” and “a jury may reasonably believe that a murderer knows this.”
Martin at ¶119.
{¶ 24} In Barry, the court determined that the evidence was legally insufficient to show
that the defendant knew that an official proceeding or investigation was in progress or was likely
to be instituted at the time she concealed drugs. In Barry, the defendant hid the drugs in her
body before departing for a road trip. She intended to drive with a group of friends to West
Virginia. While en route, a law enforcement officer stopped the defendant’s vehicle. After
questioning, the officer began to suspect that the defendant had hidden drugs inside her body.
The officer then warned the defendant that he could obtain a warrant for a body cavity search if
she did not cooperate. The defendant eventually admitted that she had concealed drugs inside
her body. The state subsequently indicted the defendant for trafficking in heroin, possession of
heroin, conspiracy to traffic in drugs, and tampering with evidence. The jury found her guilty of
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all four offenses, and on appeal, we affirmed her convictions. A majority of the panel
determined that the defendant committed the “unmistakable crimes of drug trafficking, drug
possession and conspiracy to traffic in drugs” at the time she concealed the drugs, and thus, that
she had “constructive knowledge of an impending investigation.” 2014-Ohio-4452, ¶12.
{¶ 25} We then certified the following question to the Ohio Supreme Court: “‘Whether a
person who hides evidence of a crime that is unmistakable to him or her commits tampering with
evidence in the absence of evidence that a victim or the public would report a crime?’” Barry,
145 Ohio St. 3d 354, ¶ 1, quoting 141 Ohio St. 3d 1452, 2015-Ohio-239, 23 N.E.3d 1195. The
supreme court answered, “no.” The court explained its reasoning as follows:
The answer to this question is no, because an element of tampering with
evidence requires the state to prove beyond a reasonable doubt that the accused
knew that an official proceeding or investigation is in progress or likely to be
instituted at the time the evidence is altered, destroyed, concealed, or removed.
Ohio law does not impute constructive knowledge of an impending investigation
based solely on the commission of an offense, and therefore, the fact that an act
was unmistakably a crime does not, by itself, establish that the accused knew of an
investigation into that crime or that such an investigation was likely to be
instituted. Rather, the state must demonstrate that the accused knew of a pending
official proceeding or investigation or knew that such a proceeding or
investigation was likely to be instituted at the time of the concealment.
Id. at ¶2.
{¶ 26} The court concluded that the evidence failed to establish that the defendant “knew
or could have known that a state trooper would stop her car * * * and begin an investigation of
her for drug trafficking and drug possession” at the time she concealed the drugs. Id. at ¶3.
The court explained that the evidence did not show that “at the time [the defendant] concealed
the heroin, she knew than an investigation into her drug trafficking and possession was likely to
be instituted.” Id. at ¶22. The court further noted that when the defendant hid the drugs, only
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her coconspirators were present and nothing in the record suggested that “she thought it likely
that she would be stopped by law enforcement.” Id. at ¶27. The court additionally observed
that the evidence failed to show that the defendant “displayed willful ignorance by placing the
heroin in her vaginal cavity with a subjective belief that an investigation was likely.” Id.
Instead, the court found that the defendant “concealed the drugs with a purpose to avoid detection
by law enforcement and without knowledge of an impending or likely investigation.” Id. The
court thus concluded that the evidence was insufficient to support the defendant’s tampering with
evidence conviction.
{¶ 27} In Martin, the court determined that the evidence adequately showed that the
defendant knew of an ongoing or likely investigation. In that case, the defendant shot two
people at close range and then burned his clothing. He later was charged with and convicted of
multiple counts, including tampering with evidence. On appeal to the Ohio Supreme Court, the
defendant asserted that the evidence did not support his tampering with evidence conviction. He
argued, in part, that the evidence failed to show that he had knowledge of an ongoing or likely
investigation. Id. at ¶115. The Ohio Supreme Court disagreed and explained: “As a matter of
common sense, we can infer that a person who had shot two people and left them for dead in a
residential neighborhood would know that an investigation was likely.” Id. at ¶116.
{¶ 28} The court recognized its holding in Barry that “‘Ohio law does not impute
constructive knowledge of an impending investigation based solely on the commission of an
offense.’” Id., quoting Barry at ¶2. The court, however, distinguished Barry. The court stated
that in Barry, the underlying offense was heroin possession, and the defendant allegedly
concealed the heroin inside her body. Id. at ¶117. The court explained that “when the
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defendant [in Barry] concealed the heroin, she had no reason to believe that the police would
investigate her, for ‘only her coconspirators were present * * * and nothing in the record shows
that she thought it likely that she would be stopped by law enforcement.’” Id., quoting Barry at
¶27. The court thus indicated that Barry required the court to answer “‘whether knowledge that
an official proceeding or investigation is pending or likely to be instituted can be imputed to one
who commits a crime, regardless of whether that crime is likely to be reported to law
enforcement.’” Id., quoting Barry at ¶17.
{¶ 29} The Martin court concluded that “Barry does not foreclose the possibility that
knowledge of a likely investigation may be inferred when the defendant commits a crime that is
likely to be reported.” The court noted that Barry involved “a possessory offense,” whereas the
defendant in Martin committed homicide. Id. at ¶118. The court stated that “[h]omicides are
highly likely to be discovered and investigated[, and c]ertainly, a jury may reasonably believe
that a murderer knows this.” Id. The court thus concluded that the evidence supported a
finding that when the defendant burned the clothes he had worn during the shootings, he knew
that an official investigation was about to be or likely to be instituted. Id. at ¶119.
{¶ 30} In State v. Cheesman, 5th Dist. Fairfield No. 15CA59, 2016-Ohio-5040, the court
concluded that the defendant possessed knowledge of an official investigation in progress or that
was about to be or likely to be instituted. In that case, the defendant was arrested for failing to
report to his community control officer. At the time of his arrest, officers asked the defendant
“if he had anything on him or inside of him” and patted him down for weapons. Id. at ¶4. The
defendant denied that he had any items on him or inside of him. Officers then transported the
defendant to the jail.
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{¶ 31} At the jail, a deputy again patted down the defendant and asked the defendant “if
he had anything in or on him that was illegal, warning that if he did it would be considered
conveyance, an additional felony with which he could be charged.” Id. at ¶6. The defendant
stated that he did not. Officers subsequently discovered a ball of aluminum foil in the
defendant’s pocket and the pen-barrel with the ink tube removed–items commonly associated
with drug use.
{¶ 32} During the pat-down search, the defendant clenched his muscles and gave the
officers other suspicious indicators. The officers thus sought and obtained approval for a strip
search. Once the officers received permission to conduct the strip search, the defendant
indicated that he did not feel well. The officers took appellant to the “change-out room” and
asked him to disrobe, turn around, and cough. As the defendant removed his underwear, he told
the officers he felt faint. The defendant slowly lowered himself to the ground and began to
mimic a seizure. As he was rolling around on the ground, the defendant appeared to reach his
hand toward his rectum in an effort to shove an item farther up into his rectum. The officers
subsequently discovered a plastic bag containing assorted pills. The defendant later was charged
with and convicted of tampering with evidence and illegal conveyance of a drug of abuse into a
detention facility. The defendant appealed.
{¶ 33} On appeal, the defendant asserted, in part, that the state failed to present sufficient
evidence to support his tampering with evidence conviction. He claimed that he concealed the
pills in his rectum before the officers placed him in custody, and thus, at the time he concealed
the pills, he did not know of an ongoing or likely investigation involving the pills. The appellate
court disagreed. The court rejected the defendant’s assertion that “because the pills were already
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hidden inside [his] rectum when he was taken into custody by the probation officers for failing to
report, he was not aware of any ongoing or likely investigation as it relates to the pills.” Id. at
¶41. Instead, the court agreed with the state that the defendant committed the tampering offense
not before the officers placed him in custody, but instead, he committed the offense “in the
change-out room in the jail ‘when [he] put his hand in and then over his rectal area in order to
further conceal the apprehension of the drugs.’” Id. at ¶42. The court concluded that the record
supported a finding that the defendant “attempted to further conceal the drugs hidden in his anal
cavity while the officers were investigating whether [he] had conveyed drugs in the county jail.”
Id. at ¶43.
{¶ 34} In State v. Wallace, 12th Dist. Fayette No. CA2015-09-019, 2016-Ohio-4922, the
court rejected the defendant’s argument that the evidence failed to support a finding that he knew
of an ongoing or likely investigation. In Wallace, an officer stopped the defendant’s vehicle for
speeding. Upon approaching the vehicle, the officer detected an odor of alcohol and saw a
marijuana stem on the defendant’s lap. The officer requested the defendant to exit the vehicle
and conducted a pat-down search. The officer also asked the defendant whether he had “any
weapons or anything else in the car that should not be there.” Id. at ¶2. The defendant did not
respond.
{¶ 35} During the stop, the officer learned that the defendant’s driver’s license had been
suspended and that he lacked driving privileges. A second officer then arrived on the scene and
saw the defendant place an item in his mouth that appeared to be a baggie. The officer ordered
the defendant to open his mouth, but the defendant did not comply. Instead, he attempted to
swallow the item and fled the scene. The officers pursued him and eventually apprehended him.
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Next to the defendant, the officers found a saliva-covered bag that contained a white powder.
{¶ 36} The defendant subsequently was charged with cocaine possession and tampering
with evidence. After his conviction, the defendant appealed. The defendant argued that the
evidence was insufficient to support his tampering with evidence conviction. In particular, he
claimed that the evidence failed to support a finding that he knew of an ongoing or likely
investigation into his cocaine possession when he placed the baggie in his mouth. The appellate
court disagreed. The court explained that
although the investigation began as a routine traffic stop for speeding, it escalated
to the discovery of a marijuana stem on [the defendant]’s lap, [the defendant]’s
suspended driver’s license and lack of driving privileges * * * which resulted in
the need to arrest [the defendant] and have the vehicle towed. When [the
defendant] put the baggie in his mouth and [the officer] asked him, ‘what’s in
your mouth?’ [the defendant] knew an investigation into his cocaine possession
was in progress.
Id. at ¶16.
{¶ 37} The Eighth District Court of Appeals considered a similar set of circumstances in
State v. Sharp, 8th Dist. Cuyahoga No. 103445, 2016-Ohio-2634. In Sharp, the officer stopped
the defendant’s vehicle for an expired registration. The officer subsequently learned that the
plates were registered to a different vehicle. The officer asked the defendant for his driver’s
license and proof of insurance. The defendant responded that the vehicle did not belong to him.
The officer also learned that the defendant’s driver’s license was under suspension. The officer
then advised the defendant that he would be arrested due to driving under suspension and that the
vehicle would be impounded.
{¶ 38} When the defendant exited the vehicle, the officer saw the defendant throw an
item into his mouth. The officer asked the defendant what he had placed in his mouth, and the
SCIOTO, 17CA3803 17
defendant stated that it was a piece of paper. The officer told the defendant that the officer
believed the defendant was attempting to hide or destroy some form of drugs. The officer
ordered the defendant to open his mouth and found a white substance. The defendant
subsequently was charged with tampering with evidence and drug possession.
{¶ 39} After his conviction, he appealed. He argued that the state did not present
sufficient evidence to show that he knew a drug-related investigation was in progress or likely to
be instituted. The defendant asserted that the officer had been investigating him for driving
while under suspension and that his attempt to hide or destroy drugs did not impair evidence
related to that investigation.
{¶ 40} The appellate court did not agree. The court explained: “[A]lthough the
investigation began as a routine traffic stop due to an expired registration sticker, it escalated to
the discovery of fictitious plates and [the defendant]’s driver’s license, which resulted in the need
to arrest [the defendant] and impound the vehicle.” Id. at ¶21. The court stated that the
defendant “would expect to be searched by police upon being placed under arrest.” Id. at ¶22.
The court thus believed that the evidence sufficiently showed that the defendant knew an
investigation into his possession of drugs was likely at the time he placed the paper containing
cocaine in his mouth. Id.
{¶ 41} In State v. Walker, 9th Dist. Summit No. 25744, 2011-Ohio-5779, the court
considered whether an individual, who was on parole, tampered with evidence. In Walker, law
enforcement officers saw the defendant carrying a backpack in an area where recent burglaries
had occurred. One of the officers was familiar with the defendant and knew that he had prior
arrests for burglary. The officers later observed the defendant and a group of others near the
SCIOTO, 17CA3803 18
back door of a house. When the group saw the officers approach, they quickly walked away.
The officers believed that they had interrupted a burglary in process. After the officers stopped
the defendant, they noted that he no longer had the backpack they previously saw him carrying.
When the officers recovered the backpack, they found an unloaded weapon with the serial
number removed. The officers subsequently arrested the defendant. He later was charged with
and convicted of tampering with evidence, among other things.
{¶ 42} The defendant appealed his tampering with evidence conviction. He asserted that
the state failed to present sufficient evidence that at the time he concealed the backpack, he knew
that an official proceeding or investigation was in progress or likely to be instituted. The
appellate court disagreed. The court noted that at the time of the incident, the defendant “was on
parole,” “had been informed of the rules he was required to follow while on parole,” “was in
violation of his parole at the time of the incident,” “was directly informed of his violations,”
“failed to attend the hearing” regarding his parole violations, and “failed to communicate with his
parole officer.” Id. at ¶22. The court explained: “In light of the evidence that [the defendant]
knew he was in violation of his parole and that he failed to appear at a court hearing on that
violation, it is reasonable to infer that [the defendant] knew an official investigation ‘[wa]s about
to be or likely to be instituted’ when he was spotted by the officers.” Id. The court additionally
observed that the weapon inside the concealed backpack “could have been used in the
investigation against him.” 3 Id. The court thus affirmed the defendant’s tampering with
evidence conviction.
3
The court did not, however, clarify whether the weapon could be used in the investigation into the parole
violations or the burglaries.
SCIOTO, 17CA3803 19
{¶ 43} In In re T.R.J., 11th Dist. Lake No. 2016-Ohio-7160, the court concluded that the
evidence failed to show that a juvenile tampered with evidence. In T.R.J., officers responded to
a complaint that a group of juveniles had broken into a building. Upon arrival, the officers
peered into the windows and saw T.R.J. “approach a garbage bag and manipulate the trash bag
within the can.” Id. at ¶6. The officers believed that the juvenile had placed something
between the garbage can and the liner. When the juveniles exited the building, the officers
arrested them for trespassing. One of the officers went inside the building and found a bag of
marijuana in the garbage can.
{¶ 44} T.R.J. later was adjudicated delinquent for tampering with evidence. He
appealed and asserted that the evidence failed to show that he concealed evidence while knowing
of an ongoing investigation or likely investigation into his possession of marijuana. He argued
that at the time he placed the marijuana into the garbage can, he did not have any knowledge of a
likely investigation into his possession of marijuana. The appellate court agreed. The court
noted that when the officers initially arrived on the scene, they were investigating an alleged
breaking-and-entering and had no focus on marijuana use or possession until after they
discovered the marijuana. The court thus reversed the juvenile’s delinquency adjudication for
tampering with evidence.
{¶ 45} In State v. Moulder, 2nd Dist. Greene No. 08-CA-108, 2009-Ohio-5871, the court
determined that the evidence failed to support the defendant’s tampering with evidence
conviction. In that case, the officer arrested the defendant for speeding. After the defendant
started the booking process, the arresting officer discovered a bag of crack cocaine in the
backseat of the police cruiser. The defendant subsequently was charged with cocaine
SCIOTO, 17CA3803 20
possession, possession of criminal tools, and tampering with evidence.
{¶ 46} On appeal, the defendant argued, in part, that his tampering with evidence
conviction was against the manifest weight of the evidence. The appellate court agreed. The
court explained that at the time the defendant
allegedly dropped the cocaine on the floorboard of the cruiser, the only
“investigation” that had taken place was his alleged speeding violation. The
cocaine could not have been used in proving the speeding violation. The routine
administrative processing or “booking” of [the defendant] into the jail cannot be
considered an “investigation” in the sense contemplated by the statute.
Id. at ¶7.
{¶ 47} In the case sub judice, after our review of the record we believe that the state
presented sufficient evidence that would allow a reasonable fact-finder to conclude that at the
time appellant attempted to dispose of the heroin in a trash can, appellant knew that an official
investigation was in progress or was about to be or likely to be instituted. Just like the defendant
in Wallace, at the time of appellant’s alleged tampering with evidence, he was under arrest for
violating parole. Additionally, appellant knew that the officers were investigating him for
violating parole. Certainly, a parole investigation constitutes an official investigation. Thus,
the evidence shows that at the time of appellant’s alleged tampering, he knew that an official
investigation was in progress, i.e., an investigation into his parole violation.
{¶ 48} Additionally, similar to the officers in Cheesman, Wallace, and Sharp, the officers
in the case sub judice relayed their queries regarding whether appellant possessed any contraband
before appellant’s alleged tampering. In the case at bar, the officers went further than the
officers in Wallace and Sharp and did not simply question whether he possessed contraband.
Instead, the officers here, like the officers in Cheesman, warned appellant that he could be
SCIOTO, 17CA3803 21
charged with additional crimes if found to be carrying contraband into the jail. The officers thus
gave appellant specific notice that he would be subjected to additional scrutiny at the jail to
investigate whether he had, in fact, carried any contraband into the jail. Appellant thus had
knowledge that a further investigation into whether he possessed contraband would likely occur
at the jail.
{¶ 49} Moreover, although appellant’s parole violation is not the same as the homicide
considered in Martin, common sense nevertheless suggests that a parole violator who is under
arrest will be subject to a search for contraband before being placed in a jail cell. Indeed, the
prosecutor argued during closing argument to the jury: “Everybody should know it’s
commonsense that the jail isn’t going to do just a little frisk and throw you back in there in
general population without thoroughly searching you for drugs, or weapons, or any other kind of
contraband that you shouldn’t have in jail.”
{¶ 50} Moreover, we believe that Barry is distinguishable from the case at bar. In
Barry, the defendant had no indication, before the concealment, that law enforcement officers
were hunting for any particular evidence or suspected the defendant of drug-related crimes.
Instead, in Barry, the defendant concealed the drugs before she ever encountered law
enforcement officers. Barry thus involved “preemptive measure[s] as opposed to a reaction to a
likely investigation of a recent criminal act.” State v. Shaw, 8th Dist. Cuyahoga No. 105111,
2017-Ohio-7404, 24. In contrast, in the case at bar, appellant attempted to dispose of the
evidence after the officers arrested him for violating parole and after the officers warned him of
the consequences of being caught with contraband in jail. His attempt to dispose of the evidence
was a “reaction to a likely investigation of a * * * criminal act,” and not a preemptive measure to
SCIOTO, 17CA3803 22
avoid detection. Id. Appellant knew the officers were investigating him for violating parole
and knew that he likely would be subject to a more thorough search at the jail.
{¶ 51} We also find T.R.J. and Moulder distinguishable. In T.R.J., the juvenile hid the
drugs before the juvenile was aware that law enforcement officers were on the scene to
investigate an alleged breaking-and-entering. Contrastingly, in the case at bar, appellant
attempted to dispose of the drugs with knowledge that he was under arrest, being investigated for
violating parole, and would be subject to additional search procedures at the jail.
{¶ 52} In Moulder, the defendant allegedly hid drugs while being transported to jail for a
speeding violation. While appellant also hid drugs while being escorted to jail, we nevertheless
find Moulder distinguishable. At the time the defendant concealed the drugs in Moulder, the
officer, unlike the officers in the case at bar, had not repeatedly warned the defendant that he
could be charged with additional crimes if he were found in possession of contraband. Thus, the
officer in Moulder had not forewarned the defendant of the consequences of possessing
contraband in jail. In the case at bar, however, the officers did forewarn appellant of the
consequences of possessing contraband in jail. Furthermore, unlike appellant, the defendant in
Moulder was not being investigated for violating parole.
{¶ 53} Finally, even if we accept for purposes of argument that appellant lacked
knowledge that an investigation into his possession of or trafficking in heroin was likely at the
time he attempted to dispose of it, he did not lack knowledge that the officers were investigating
him for violating parole and that he would be searched for contraband more thoroughly once he
SCIOTO, 17CA3803 23
arrived at the jail.4 We therefore disagree with appellant that the state failed to present sufficient
evidence to establish that he knew an official investigation was in progress or was about to be or
likely to be instituted.
B
{¶ 54} The second element requires the state to establish that the defendant altered,
destroyed, concealed, or removed the potential evidence. To the extent appellant contends that
the evidence fails to show that he altered, destroyed, concealed, or removed evidence, we do not
agree. “‘A defendant’s act of removing contraband from his or her person can constitute
concealment or removal if done to avoid discovery.’” State v. Workman, 2015-Ohio-5049, 52
N.E.3d 286 (3rd Dist.), ¶58, quoting State v. Straley, 2d Dist. Clark No. 2012–CA–34,
2013-Ohio-510, 2013 WL 596538, ¶9, citing State v. Colquitt, 2d Dist. Clark No. 98–CA–71,
1999 WL 812313, *5 (Sept. 24, 1999). Thus, a “trier of fact could reasonably infer that placing
[an item] in a trash bin constitute[s] concealment or removal.” Workman at ¶58.
{¶ 55} In the case sub judice, appellant threw the heroin in a trash can. A trier of fact
could reasonably conclude that appellant’s attempt to dispose of the heroin shows that he altered,
destroyed, concealed, or removed the heroin. We therefore disagree with appellant that the state
failed to present sufficient evidence to establish this element.
C
{¶ 56} The third element contained in the tampering with evidence statute “requires
proof that the defendant intended to impair the value or availability of evidence that related to an
4
Our discussion of the third element, infra, will address whether the evidence sufficiently shows that
appellant tampered with evidence related to that investigation or likely investigation.
SCIOTO, 17CA3803 24
existing or likely official investigation or proceeding.” Straley at syllabus. In other words, “the
evidence tampered with must have some relevance to an ongoing or likely investigation” of
which the defendant has knowledge. Straley at ¶16.
{¶ 57} In Straley, the court determined that the evidence failed to show that the evidence
tampered with related to the ongoing or likely investigation of which the defendant had
knowledge. In Straley, law enforcement officers stopped the defendant’s vehicle for erratic
driving. Although the officers detected an odor of alcohol emanating from the defendant, they
decided not to pursue an investigation. The officers would not, however, allow the defendant to
drive home. As the officers tried to arrange a ride home for the defendant, the defendant
announced that she needed to urinate. Afterwards, one of the officers walked to the area where
the defendant had urinated and discovered a clear plastic bag covered with urine. The officer
believed the bag contained crack cocaine. The officers subsequently arrested the defendant, and
she later was charged with trafficking in drugs, possession of drugs, and tampering with
evidence.
{¶ 58} Following her conviction on all counts, the defendant appealed. The court of
appeals reversed the defendant’s tampering with evidence conviction. The court determined that
the evidence failed to show that the defendant acted with purpose to impair the value of evidence
in an ongoing or likely investigation into her (1) driving under the influence of alcohol, or (2)
public urination. The court concluded that the bag of drugs did not relate to a current or likely
investigation.
{¶ 59} On further appeal, the Ohio Supreme Court agreed with the appellate court’s
decision. The court explained that “the evidence tampered with must have some relevance to an
SCIOTO, 17CA3803 25
ongoing or likely investigation to support a tampering charge.” Id. at ¶16. The court further
held that the evidence tampered with must relate to “the one that the defendant knows is ongoing
or is likely to be instituted.” Id.
{¶ 60} The court applied these rules to the defendant’s conviction and determined that
the evidence failed “to suggest that the officers were conducting or likely to conduct an
investigation into trafficking or possession of cocaine when [the defendant] discarded the
baggie.” Id. at ¶19. The court additionally pointed out that the “baggie of cocaine did not relate
to either an ongoing investigation of driving while under the influence of alcohol or driving
without a license and had no evidentiary value to a likely investigation of public urination.” Id.
The court thus concluded that the evidence failed to adequately support the defendant’s
tampering with evidence conviction.
{¶ 61} In the case sub judice, appellant contends that Straley illustrates that he did not
tamper with evidence related to an ongoing or likely investigation because no evidence indicated
that he knew the officers were investigating or likely to investigate his possession of or
trafficking in heroin. We believe, however, that appellant focuses too narrowly on the nature of
the investigation. Instead, as we discussed above, the officers were investigating appellant for
violating parole. They also warned appellant about the consequences of conveying contraband
into the jail and appellant knew–or was willfully ignorant, if not–that he would be further
scrutinized at the jail. The evidence appellant allegedly tampered with (heroin) could have
relevance to the officers’ parole-violation investigation or to whether he conveyed contraband
into the jail. Therefore, the evidence shows that appellant knew he was under investigation for
violating parole, knew that conveying drugs into the jail constituted a crime, and could
SCIOTO, 17CA3803 26
reasonably expect to be more thoroughly searched for contraband at the jail. Thus, by disposing
of the evidence immediately before entering the jail-house doors, appellant impaired the
availability of that evidence for use in an ongoing parole-violation investigation or in a likely
investigation into whether he had conveyed illegal drugs into a detention facility.
{¶ 62} Despite his knowledge and the officers’ warnings, appellant attempted to dispose
of heroin by throwing it in the trash can. This evidence adequately shows that appellant had a
purpose to impair the use of the heroin as evidence. Workman at ¶59 (“disposing of an item in a
trash bin demonstrates the requisite intent—‘with purpose’—of impairing an item’s availability
as evidence in an investigation.”). Additionally, even when a defendant’s attempted
concealment ultimately proves unsuccessful, as in the case sub judice, this failure “has no effect
on a sufficiency-of-the-evidence analysis.” State v. Jackson, 1st Dist. Hamilton No. C–140178,
2014-Ohio-5008, 2014 WL 5840033, ¶15. We therefore disagree with appellant that the state
failed to present sufficient evidence to establish that he possessed a purpose to impair the
potential evidence’s availability or value in the proceeding or investigation of which he had
knowledge.
{¶ 63} Based upon all of the circumstances in the case sub judice, we believe that the
state presented sufficient evidence to support appellant’s tampering with evidence conviction.
For similar reasons, we do not believe that appellant’s tampering with evidence conviction is
against the manifest weight of the evidence. The case at bar is not one of those exceptional
cases in which the evidence weighs heavily against conviction. Here, the state presented
substantial competent, credible evidence upon which the jury could have concluded, beyond a
reasonable doubt, that all of the essential elements of the offense had been established.
SCIOTO, 17CA3803 27
{¶ 64} Accordingly, based upon the foregoing reasons, we overrule appellant’s first
assignment of error.
III
{¶ 65} In his second assignment of error, appellant asserts that the state did not present
sufficient evidence to support his possession of heroin and trafficking in heroin convictions, or
alternatively, that the convictions are against the manifest weight of the evidence.
A
{¶ 66} Appellant first challenges his trafficking in heroin conviction. He contends that
the officer’s testimony that appellant informed the officers that he was delivering the heroin to
“some guy in the Ville” fails to show that he knowingly sold or offered to sell heroin or that he
prepared the heroin for an intended sale.
{¶ 67} R.C. 2925.03(A)(2) sets forth the offense of drug trafficking as charged in the
indictment and states:
No person shall knowingly * * *
****
(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 or
a controlled substance analog is intended for sale or resale by the offender or
another person.
As used in this statute, selling includes delivering, bartering, exchanging, transferring, or gifting.
See R.C. 2925.01(A) (incorporating R.C. 3719.01 definitions) and 3719.01(AA) (defining
“sale”). This definition is broader than the common dictionary definition of “sale.” State v.
Adkins, 80 Ohio App. 3d 211, 221, 608 N.E.2d 1152, 1159 (4th Dist.1992); accord Drug
trafficking—Elements, Baldwin’s Oh. Prac.Crim. L., Section 107:2 (3d ed.). “Ohio has adopted
SCIOTO, 17CA3803 28
a definition of ‘sale’ of controlled substances that is broad in scope, calculated to include all
transfers of controlled substances regardless of the presence or absence of consideration
therefor.” State v. Albritton, 6th Dist. Wood No. WD–80–48, 1980 WL 351681, *6 (Dec. 26,
1980). Consequently, “[i]n a prosecution for offering to sell a controlled substance, the state is
not required to prove that there was a sale or even that the controlled substance existed. A
defendant may be convicted, even in the absence of a completed drug sale, if the defendant
committed any element of drug trafficking incident to an aborted sale. * * * The term ‘offer to
sell’ includes a person who offers to provide narcotics as a link in the chain of supply, and
whether the person intends to act as agent for the seller or buyer is immaterial.” Drug
trafficking—Elements, Baldwin’s Oh. Prac.Crim. L., Section 107:2 (3d ed.) (footnotes omitted);
accord State v. Harris, 89 Ohio App. 3d 147, 148–49, 623 N.E.2d 1240, 1241 (8th Dist.1993)
(upholding defendant’s drug trafficking conviction when she retrieved black sock from her
person and handed to third person who ultimately delivered sock containing controlled substance
to confidential informant). “This essentially means that a person who knowingly transfers or
offers to transfer narcotics is guilty of selling or offering to sell narcotics within the meaning of
R.C. 2925.03.” State v. Latina, 13 Ohio App. 3d 182, 187, 468 N.E.2d 1139, 1146 (8th
Dist.1984).
{¶ 68} In State v. Curry, 10th Dist. Franklin No. 99AP–862, 2000 WL 675110 (May 25,
2000), the defendant asserted that the state failed to present sufficient evidence to support his
drug trafficking conviction and that his conviction was against the manifest weight of the
evidence when the state failed to present direct evidence that the defendant received money in
exchange for drugs. In Curry, an undercover narcotics officer obtained drugs from the
SCIOTO, 17CA3803 29
defendant via a third party. The officer met with the third party in an undercover capacity and
informed her that he wished to purchase cocaine. The officer gave her $1,300. The third party
stated that she needed to contact her supplier. A short time later, the third party met the
defendant in a parking lot. The defendant entered the third party’s vehicle carrying a red and
black Doritos chip bag, but left her vehicle without this bag. Shortly thereafter, the third party
presented the Doritos bag to the undercover officer. Inside the bag was one ounce of cocaine.
The defendant subsequently was charged and convicted of drug trafficking. On appeal, the
defendant asserted that his conviction could not stand because, inter alia, no one observed money
exchanged.
{¶ 69} The appellate court, however, rejected the defendant's arguments and explained:
We find unpersuasive defendant’s contention that the evidence failed to show a
“sale” where the state’s witnesses did not observe money being exchanged
between Pelfrey and defendant. R.C. 2925.01(A) “incorporates the R.C.
3719.01(EE) definition of ‘sale’ into the drug statutes,” a definition that is
“broader than the common dictionary definition of ‘sale.’” State v. Adkins (1992),
80 Ohio App. 3d 211, 221, 608 N.E.2d 1152. R.C. 3719.01(AA) defines “[s]ale”
to include “delivery, barter, exchange, transfer, or gift, or offer thereof, and each
transaction of those natures made by any person, whether as principal, proprietor,
agent, servant, or employee.”
Id. at *4.
{¶ 70} We likewise reject appellant’s argument that the evidence fails to support his
trafficking conviction simply because the officers did not witness appellant transfer heroin to
anyone in exchange for cash. Instead, the word “sale,” as used in R.C. 2925.03(A)(1), is broadly
defined to include delivery, barter, exchange, transfer, or gift. The officers testified that
appellant admitted he intended to deliver the heroin to an individual “in the Ville.” Appellant
SCIOTO, 17CA3803 30
thus indicated that he was transporting the heroin with knowledge that he would deliver it to
another individual. As we already stated, “deliver” satisfies the drug-trafficking statute’s
definition of “sale.” Thus, because appellant admitted that he transported the heroin with the
intention to deliver it to a third person, the evidence more than adequately shows that appellant
transported heroin while knowing that it was intended for “sale.” Therefore, sufficient evidence
supports appellant’s R.C. 2925.03(A)(2) trafficking in heroin conviction. For similar reasons,
we do not believe that his conviction is against the manifest weight of the evidence.
B
POSSESSION
{¶ 71} Appellant next argues that the state’s evidence fails to show that he knowingly
possessed heroin. He points out that before the officers placed him into the vehicle to transport
him to jail, the officers searched him, yet they did not locate any heroin on his person.
Appellant contends that the discovery of heroin in the trash can after he stepped out of the
vehicle fails to support a finding that he knowingly possessed the heroin.
{¶ 72} R.C. 2925.11(A) provides: “No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.” R.C. 2925.01(K) defines “possession”
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.” Whether a defendant knowingly possessed a controlled substance “is to be
determined from all the attendant facts and circumstances available.” State v. Teamer, 82 Ohio
St.3d 490, 492, 696 N.E.2d 1049 (1998); accord State v. Corson, 4th Dist. Pickaway No. 15CA4,
2015–Ohio–5332, ¶13.
SCIOTO, 17CA3803 31
{¶ 73} Possession may be actual or constructive. State v. Butler, 42 Ohio St. 3d 174,
175, 538 N.E.2d 98 (1989) (“To constitute possession, it is sufficient that the defendant has
constructive possession * * *.”); State v. Hankerson, 70 Ohio St. 2d 87, 434 N.E.2d 1362 (1982),
syllabus. “‘Actual possession exists when the circumstances indicate that an individual has or
had an item within his immediate physical possession.’” State v. Kingsland, 177 Ohio App. 3d
655, 2008–Ohio–4148, 895 N.E.2d 633, ¶13 (4th Dist.), quoting State v. Fry, 4th Dist. Jackson
No. 03CA26, 2004–Ohio–5747, 2004 WL 2428439, ¶39. “Constructive possession exists when
an individual knowingly exercises dominion and control over an object, even though that object
may not be within his immediate physical possession.” Hankerson, syllabus; State v. Brown, 4th
Dist. Athens No. 09CA3, 2009–Ohio–5390, 2009 WL 3236206, ¶19. For constructive
possession to exist, the state must show that the defendant was conscious of the object’s
presence. Hankerson, 70 Ohio St. 2d at 91, 434 N.E.2d 1362; Kingsland at ¶13; accord State v.
Huckleberry, Scioto App. No. 07CA3142, 2008–Ohio–1007, 2008 WL 623342, ¶34; State v.
Harrington, Scioto App. No. 05CA3038, 2006–Ohio–4388, 2006 WL 2457218, ¶15. Both
dominion and control, and whether a person was conscious of the object’s presence, may be
established through circumstantial evidence. E.g., Brown at ¶19; see, e.g., State v. Jenks, 61
Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus (stating that
“[c]ircumstantial evidence and direct evidence inherently possess the same probative value”).
{¶ 74} In the case sub judice, we believe that the state presented sufficient evidence to
establish that appellant knowingly possessed heroin. One of appellant’s parole officers,
Matthew Stuntebeck, testified that appellant appeared fidgety upon his arrival at the jail.
Stuntebeck explained that appellant appeared to have “something in his hand and kind of had his
SCIOTO, 17CA3803 32
hands in the back of his pants.” Stuntebeck then observed appellant drop something in the trash
can. Stuntebeck retrieved the item from the trash can. Stuntebeck stated that the trash can was
completely empty, except for a “really thin smashed Pall Mall cigarette package” that contained a
powdery substance wrapped inside a small plastic bag. When Stuntebeck asked appellant about
the item, appellant indicated that it was “dope.” Stuntebeck further inquired whether it was
heroin, and appellant responded, “Yeah, something like that.” This evidence, if believed, more
than amply shows that appellant possessed the heroin immediately before discarding it in the
trash can and that he knew he possessed the heroin before discarding it. Consequently,
sufficient evidence supports his possession of heroin conviction. For these same reasons, we do
not believe that his conviction is against the manifest weight of the evidence.
{¶ 75} Accordingly, based upon the foregoing reasons, we overrule appellant’s second
assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
SCIOTO, 17CA3803 33
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
SCIOTO, 17CA3803 34
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.