State v. Graves , 2011 Ohio 5997 ( 2011 )

[Cite as State v. Graves, 2011-Ohio-5997.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 08CA009397
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ALBERT GRAVES COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 04-CR-065187
DECISION AND JOURNAL ENTRY
Dated: November 21, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} In August 2004, Albert Graves was riding in the back seat of a sedan traveling
east on Interstate 80 in Lorain County, when the Ohio State Highway Patrol stopped the car due
to traffic violations. Police found crack cocaine, powder cocaine, and marijuana in the trunk.
This matter is before the Court as a reopened appeal. See App. R. 26(B). Mr. Graves’s appellate
lawyer was ineffective for failing to assign allied offenses as error. Therefore, our March 16,
2009, judgment in this case is vacated. App. R. 26(B)(9). This Court reverses the judgment of
the Lorain County Common Pleas Court because the State did not present sufficient evidence
that, if believed, could convince the average finder of fact of Mr. Graves’s guilt beyond a
reasonable doubt.
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BACKGROUND
{¶2} Trooper Mark Neff found three men inside the car he had stopped. James
Williams was driving, Moriba Ramsey was in the front passenger seat, and Mr. Graves was in
the back. Trooper Neff grew suspicious when he was unable to confirm that Mr. Williams had a
valid driver’s license. Furthermore, although Mr. Williams and Mr. Ramsey both told him that
Mr. Ramsey had borrowed the car from a female, they gave different names for the car’s owner
and different information about her relationship to Mr. Ramsey.
{¶3} Due to weather conditions, Trooper Neff determined that the car needed to be
pulled off the highway, and he asked whether either of the two passengers could legally drive.
Mr. Graves indicated that he had a valid license, so the trooper directed him to move from the
back seat to the driver’s seat in order to drive the car to a nearby highway maintenance facility
where a K-9 unit was waiting. Police required the men to leave the car before the dog was
brought over to it. Police patted down each man before placing him inside Trooper Neff’s
vehicle. They found a film canister full of marijuana roaches on Mr. Williams, but no
contraband on the other two men.
{¶4} The trooper’s dashboard camera produced a videotape of the search of the car
while the audio part of the tape recorded a feed from two microphones. Trooper Neff wore one
microphone and the other was mounted inside his vehicle. Thus, the audio part of the tape
includes conversation among the three men while they watched the search of their car unfold.
{¶5} Police found a small amount of marijuana under the front passenger seat. They
found no other contraband inside the passenger compartment. When they searched the trunk of
the car, they found nothing illegal inside a backpack or a duffle bag. Underneath those bags,
police found a plastic grocery bag. Inside the grocery bag, they found marijuana, cocaine, and a
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Footlocker shoe store bag containing 1160 grams of crack cocaine. There was evidence that the
backpack belonged to Mr. Williams. There was no evidence about who owned the duffle bag.
Although police dusted both the grocery bag and the Footlocker bag for fingerprints, they found
none.
{¶6} On the videotape that the State played for the jury, Mr. Williams and Mr. Ramsey
can be heard discussing the search as it progresses. Before the troopers located the drugs in the
trunk of the car, both Mr. Williams and Mr. Ramsey made statements that indicate that they
knew that something illegal was in a bag in the trunk of the car. Mr. Graves only spoke a few
times during the forty-five minute recording. Mr. Graves’s voice is much deeper than the other
two voices and is much more difficult to hear and understand on the tape.
{¶7} Mr. Graves was arrested and charged with one count of possession of cocaine and
one count of trafficking in cocaine, both first-degree felonies and both carrying a major drug
offender specification. He was also charged with a fourth-degree felony count of trafficking in
marijuana, a fifth-degree felony count of possession of marijuana, and a fifth-degree felony
count of possession of cocaine.
{¶8} In April 2008, a jury found him guilty on all counts, and he was sentenced to an
aggregate prison term of eleven years. He appealed, and this Court affirmed his convictions in
March 2009. State v. Graves, 9th Dist. No. 08CA009397, 2009-Ohio-1133, not accepted for
review, 122 Ohio St. 3d 1521, 2009-Ohio-4776. This Court later granted his application to
reopen his appeal based on claims of ineffective assistance of counsel focusing on his sentences
for allied offenses.
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INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
{¶9} Under Rule 26(B)(9) of the Ohio Rules of Appellate Procedure, “[i]f th[is]
[C]ourt finds that the performance of appellate counsel was deficient and the applicant was
prejudiced by that deficiency, [it] shall vacate its prior judgment and enter the appropriate
judgment. If th[is] [C]ourt does not so find, [it] shall issue an order confirming its prior
judgment.” Deficient performance by a lawyer is a performance that falls below an objective
standard of reasonable representation. State v. Hale, 119 Ohio St. 3d 118, 2008-Ohio-3426, at
¶204 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). A defendant is prejudiced
by the deficiency if there is a reasonable probability that, but for his lawyer’s errors, the result of
the proceeding would have been different. Id. (citing Strickland v. Washington, 466 U.S. 668,
694 (1984)). “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Upon review of the record, this Court has determined
that Mr. Graves’s appellate lawyer’s performance was deficient because he did not assign as
error Mr. Graves’s concurrent sentences on allied offenses of similar import.
{¶10} Mr. Graves’s first assignment of error is that the trial court committed plain error
by imposing separate sentences for possession and trafficking of the same drugs. The State has
conceded that Mr. Graves was incorrectly sentenced on allied offenses for possession and
trafficking of crack cocaine and marijuana, but has requested that this Court exercise its power
under Section 2953.08(G)(2) to modify the sentences rather than remanding for a resentencing
hearing. Recognizing that it must elect which offense it wishes to pursue, the State has requested
that this Court merge the possession and trafficking offenses for each drug, sentencing Mr.
Graves only on the trafficking counts.
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{¶11} Under Section 2941.25(A) of the Ohio Revised Code, “[w]here the same conduct
by defendant can be construed to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses, but the defendant may be
convicted of only one.” The Ohio Supreme Court has held that it is plain error to impose
individual sentences for multiple counts that constitute allied offenses of similar import. State v.
Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, at ¶31. The State has conceded that Mr.
Graves’s possession and trafficking charges for each drug should have been merged into one
conviction for marijuana and one for crack cocaine. Mr. Graves’s appellate lawyer was
ineffective for failing to assign as error the separate convictions for trafficking and possession of
the same drugs. Therefore, we vacate our March 16, 2009, decision in this case and proceed to
consider the matter as on direct appeal. See App. R. 26(B)(7).
SUFFICIENCY OF THE EVIDENCE
{¶12} Mr. Graves’s fifth assignment of error is that his convictions are not supported by
sufficient evidence. The State has argued that the Ohio Rules of Appellate Procedure forbid us
from addressing Mr. Graves’s argument in regard to the possession convictions because we
previously considered similar arguments as part of his original appeal.
{¶13} Under Rule 26(B)(7) of the Ohio Rules of Appellate Procedure, this Court “may
limit its review [of a reopened appeal] to those assignments of error and arguments not
previously considered.” Contrary to the State’s argument, the rule does not prohibit this Court
from reviewing the sufficiency of the evidence despite the fact that it was challenged in the
original appeal. Appellate Rule 26(B)(7) provides that this Court “may” limit its review to
arguments not previously considered, but does not mandate that it do so. Having vacated our
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prior judgment in this case, we will now proceed to consider Mr. Graves’s assignments of error
“as on an initial appeal.” App. R. 26(B)(7), (9).
{¶14} Mr. Graves has argued that his convictions are not supported by sufficient
evidence because there was no evidence that he knew about the drugs in the trunk or that he had
possession of the keys to the vehicle. He has argued that he was convicted because he was
merely present as a passenger going home from Detroit, Michigan, to Erie, Pennsylvania.
Whether a conviction is supported by sufficient evidence is a question of law that this Court
reviews de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997); State v. West, 9th Dist.
No. 04CA008554, 2005–Ohio–990, at ¶33. We must determine whether, viewing the evidence
in a light most favorable to the prosecution, it could have convinced the average finder of fact of
Mr. Graves’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, paragraph two
of the syllabus (1991).
{¶15} Section 2925.11(A) provides that “[n]o person shall knowingly obtain, possess, or
use a controlled substance.” “Possess” means “having control over a thing or substance . . . .”
R.C. 2925.01(K). Possession may be actual or constructive and either individual or joint. State
v. McShan, 77 Ohio App. 3d 781, 783 (1991); State v. Gibson, 9th Dist. No. 18540, 1998 WL
225037 at *2 (May 6, 1998). Possession “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.” R.C. 2925.01(K). In order to constructively possess an item, one must be
conscious of its presence and able to exercise dominion and control over it. State v. Hankerson,
70 Ohio St. 2d 87, 91 (1982). “[T]he crucial issue is not whether the accused had actual physical
contact with the article concerned, but whether the accused was capable of exercising dominion
[and] control over it.” State v. Ruby, 149 Ohio App. 3d 541, 2002-Ohio-5381, at ¶30 (citing
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State v. Brooks, 113 Ohio App. 3d 88, 90 (1996)). Under Section 2925.03(A)(2) of the Ohio
Revised Code, “[n]o person shall knowingly . . . transport . . . a controlled substance, when the
offender knows or has reasonable cause to believe that the controlled substance is intended for
sale . . . .”
{¶16} In this case, Mr. Graves did not actually possess any drugs, so the question is
whether the State presented sufficient evidence of constructive possession. It is undisputed that
Mr. Graves was a back seat passenger in the car and that two other men were riding in the front
seat. There was no evidence that Mr. Graves owned the car, had borrowed the car, or that he had
ever driven the car prior to the traffic stop. There was no forensic evidence linking him to the
drugs, and there was no evidence that he owned any of the items found in the trunk.
{¶17} Mr. Graves has argued that there is no evidence that he had access to the trunk of
the car. He has specifically argued that he did not have possession of the keys to the vehicle. At
trial, Trooper Neff testified that he thought he had found the key to the car on Mr. Graves when
he patted him down. He also said that he thought he could hear on the video that he had asked
Mr. Graves “why he had so many keys on him[.]” The record does not include any further
testimony about keys.
{¶18} The videotape shows that, at the beginning of the stop, when Mr. Williams
stepped out of the car, he left the keys in the ignition. The car’s wipers continued to run and the
turn signal continued to blink while Mr. Williams talked with Trooper Neff outside the vehicle.
Mr. Williams never reentered the car. The trooper testified that he asked Mr. Graves to drive the
car to a nearby highway maintenance facility. The video shows Mr. Graves getting into the
driver’s seat, driving a short distance, turning off the road, and parking the car. When Mr.
Graves first stepped out of the car after moving it for the trooper, the wipers and lights were still
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on. The video shows that Mr. Graves quickly reentered the car, turned it off, and put the keys
into his coat pocket. Seconds later, off camera, the trooper patted him down and asked him why
he had so many keys in his pocket. Although Mr. Graves’s answer is unintelligible, Trooper
Neff responded in a tone indicating that he was satisfied with the answer. There is no evidence
that there was more than one key to the car present at the site of the traffic stop. The only
reasonable inference from the evidence is that Trooper Neff found Mr. Graves in possession of
the key to the car as well as some other unidentified keys. There is no evidence tending to show
how many keys were on the keychain with the key to the car. There is no evidence tending to
show how many keys Mr. Graves had or why he had more than one key on him when he turned
the car off and removed the key.
{¶19} The only argument to be made regarding Mr. Graves having access to the drugs or
ability to exercise dominion and control over them is that he had the car keys in his pocket when
he was patted down by officers. It is clear from the record, however, that the keys were in the
ignition rather than his pocket when the car was stopped by police. Mr. Graves is seen putting
the keys into his pocket only after he moved the car at the request of the police. Therefore,
regardless of how many keys police found in his pockets, Mr. Graves had the keys to the car
because he complied with Trooper Neff’s request that he move the vehicle. Under the facts of
this case, reasonable jurors could not infer that Mr. Graves exercised dominion and control over
the contents of the trunk of the car based on the evidence that police found him in possession of
the keys to the car and the testimony that Mr. Graves had “so many keys” on him when he was
moved to the cruiser.
{¶20} The record indicates that Mr. Graves had neither the ability to access the trunk of
the car nor the ability to exercise dominion and control over its contents. Therefore, regardless
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of whether the evidence supports an inference that Mr. Graves knew or suspected that there were
drugs in the trunk, there was no evidence that he constructively possessed the drugs by riding in
the back seat. See State v. Hankerson, 70 Ohio St. 2d 87, 91 (1982).
{¶21} At trial, during closing argument, the State argued to the jury that the videotape
depicts Mr. Graves making several statements implying that he knew there were drugs in the
trunk. Mr. Graves has argued that, unlike Mr. Williams and Mr. Ramsey, he did not make any
statements indicating that he had knowledge of any controlled substances being in the trunk. The
prosecutor’s closing argument is not evidence. State v. Frazier, 73 Ohio St. 3d 323, 338 (1995).
There is no transcript of the videotape in the record, and there is little witness testimony about
what was said on the tape. There is a lot of ambient noise and static making the audio recording
difficult to understand. Even listening to the tape repeatedly while relying on the assertions the
State made during closing argument, it is not at all clear that Mr. Graves made the statements
attributed to him. The State argued that these statements tended to prove that Mr. Graves knew
there were drugs in the trunk of the car and that he wanted to get their stories straight before
speaking with police.
{¶22} Even assuming for the sake of argument that the evidence at trial supported each
of the State’s assertions about Mr. Graves’s statements, however, we cannot say the State
presented sufficient evidence that, if believed, would convince the average mind of his guilt
beyond a reasonable doubt. Construed in the best possible light for the State, the statements the
prosecutor attributed to Mr. Graves tend to show that he knew they were in trouble even before
the police found the drugs in the trunk and that, after drugs were found, he wanted to get out of
trouble. None of the statements Mr. Graves allegedly made on the tape tends to show that he
knowingly possessed or transported illegal drugs. Even assuming, without deciding, that there
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was sufficient evidence that he knew there were drugs in the car, there was no evidence from
which the jury could reasonably conclude that Mr. Graves was able to exert dominion and
control over the contents of the trunk.
{¶23} Mr. Graves cannot have possessed something over which he had no control. See
R.C. 2925.01(K) (“Possess” means “having control over a thing or substance[.]”). The State did
not present sufficient evidence that, if believed, could convince the average mind beyond a
reasonable doubt that Mr. Graves constructively possessed the drugs. Furthermore, there was not
sufficient evidence that, if believed, could convince the average mind beyond a reasonable doubt
that Mr. Graves knowingly transported drugs for sale. There was no evidence that Mr. Graves
had any connection to the drugs. Mr. Graves’s fifth assignment of error is sustained. Each of
Mr. Graves’s convictions is based on insufficient evidence. His other assignments of error are
moot and are overruled on that basis.
CONCLUSION
{¶24} Mr. Graves’s appellate lawyer was ineffective for failing to assign as error the
multiple concurrent sentences for allied offenses of similar import. Therefore, this Court’s
March 16, 2009, judgment in this case is vacated. Mr. Graves’s fifth assignment of error is
sustained because the State did not present sufficient evidence that, if believed, could convince
the average finder of fact beyond a reasonable doubt that Mr. Graves possessed or trafficked in
the drugs found in the trunk of the car in which he was riding as a back seat passenger. The
judgment of the Lorain County Common Pleas Court is reversed, and the cause is remanded.
Judgment reversed,
and cause remanded.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, J.
CONCURS
BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY
APPEARANCES:
MICHAEL E. STEPANIK, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting
Attorney, for Appellee.