State v. Gilbert , 2012 Ohio 4090 ( 2012 )

[Cite as State v. Gilbert, 2012-Ohio-4090.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 11CA0076-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CARVILLIA J. GILBERT, JR. COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 10-CR-0478
DECISION AND JOURNAL ENTRY
Dated: September 10, 2012
MOORE, Presiding Judge.
{¶1} Appellant, Carvillia Gilbert, appeals the judgment of the Medina County Court of
Common Pleas. This Court affirms.
I.
{¶2} In the early morning hours of September 15, 2010, Lester Javey was driving a car
headed north on Interstate 71, traveling from Columbus to Youngstown. Carvillia Gilbert was in
the front passenger seat. Javey and Gilbert were the only two people in the car. Around 1:30
a.m., Medina County Deputy Paul Schismenos noticed the car driven by Javey did not have a
functioning rear license plate light as required by law. Deputy Schismenos conducted a traffic
stop and approached the passenger’s side to obtain license, registration and insurance
information. Deputy Schismenos testified that he became suspicious when Gilbert appeared
nervous. Deputy Schismenos testified that in his experience when a passenger in a car becomes
nervous, there is usually more than just a traffic violation going on. Deputy Schismenos showed
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Javey the malfunctioning license plate light and placed him in the back of his police car while he
completed writing a citation.
{¶3} During this time, Deputy Kohler arrived with his canine unit. Upon circling the
vehicle, the dog alerted Deputy Kohler to the odor of narcotics at the driver’s side door. The
officers then placed Gilbert in the back of Deputy Schismenos’ cruiser with Javey while they
conducted a search of the car. Deputy Schismenos’ police car was equipped with a dashboard
camera, which records both audio and video. An audio recording was made of Javey and Gilbert
talking to each other during the search while they were sitting in the back of the police car.
{¶4} Both deputies testified to a strong odor of raw marijuana in the passenger
compartment, and to finding what they believed to be marijuana residue in the cup holder. The
deputies also testified to finding an open package of cigarillos, which, according to the officers,
are often used to smoke marijuana. In the trunk the deputies found approximately two pounds of
marijuana. The drugs were packaged in two one gallon Ziploc bags, which were wrapped in a
black trash bag and hidden under a winter jacket. A partial fingerprint found on one of the
Ziploc bags did not match Gilbert or Javey, and both men denied ownership of the marijuana.
The car belonged to a Tonya Jennings of Youngstown. No mention was made of how the car
came to be in the possession of Gilbert and Javey.
{¶5} Gilbert was charged with one count of possession of marijuana in violation of
R.C. 2925.11(A)/(C)(3)(c), a felony of the fifth degree. Gilbert was convicted after a jury trial.
He now appeals and presents two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING MR. GILBERT’S MOTION FOR
A JUDGMENT OF AQUITTAL (sic) UNDER CRIMINAL RULE 29 AT THE
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CLOSE OF THE STATE’S CASE-IN-CHIEF, WHICH WAS ALSO RENEWED
AT THE DEFENSE’S CLOSE OF ITS CASE-IN-CHIEF, BECAUSE THERE
WAS INSUFFICIENT EVIDENCE PRESENTED BY THE STATE OF OHIO
TO CONVICT MR. GILBERT OF POSSESSION OF DRUGS.
{¶6} In his first assignment of error, Gilbert argues that the trial court erred when it
overruled his motion for judgment of acquittal. Specifically, Gilbert argues that there is
insufficient evidence to support his conviction. We disagree.
{¶7} Crim.R. 29(A) permits a court to enter a judgment of acquittal if the evidence is
insufficient to sustain a conviction. Akron v. Marstellar, 155 Ohio App.3d 132, 2003-Ohio-
5608, ¶ 4 (9th Dist.). “‘[S]ufficiency’ is a term of art meaning that legal standard which is
applied to determine whether the case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380,
386 (1997), quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a
test of adequacy.” Thompkins at 386. When reviewing a conviction for sufficiency, evidence
must be viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259(1991), paragraph two of the syllabus. The pertinent question is whether “any rational trier of
fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id.{¶8} “Whether the evidence is legally sufficient to sustain a verdict is a question of
law.” Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955). This Court,
therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354,
2008-Ohio-3721, ¶ 4 (9th Dist.).
{¶9} Gilbert was convicted of one count of possession of drugs in violation of R.C.
2925.11(A)/(C)(3)(c), a felony of the fifth degree. To support a conviction under this statute, the
State must prove that Gilbert knowingly obtained or possessed more than 200 grams, but less
than 1000 grams of marijuana. The police recovered 886 grams of marijuana from the trunk of
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the car in which Gilbert was a passenger. Gilbert does not challenge the sufficiency of the
evidence with respect to the type or amount of drugs. Instead, he limits his challenge to the
element of whether he possessed them. We limit our review accordingly.
{¶10} “‘[P]ossession’ means having control over a thing or substance * * *.” R.C.
2925.01(K). A person may have actual or constructive possession. “Constructive possession
exists when an individual exercises dominion and control over an object, even though that object
may not be within his immediate possession.” State v. Wolery, 46 Ohio St.2d 316, 329 (1976).
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). However, “possession of the keys to the automobile is a strong indication of control
over the automobile and all things found in * * * the automobile.” State v. Ray, 9th Dist. No.
03CA0062-M, 2004-Ohio-3412, ¶ 23, quoting State v. Miller, 4th Dist. No. 98 CA 2467, 1999
WL 595361 (July 27, 1999).
{¶11} “Possession of a drug includes possessing individually, or jointly with another
person. Joint possession exists when two or more persons together have the ability to control an
object, exclusive of others.” State v. Figueroa, 9th Dist. No. 22208, 2005-Ohio-1132, ¶ 8,
quoting State v. Alicea, 8th Dist. No. 78940, 2001 WL 1243944, *16 (Oct. 18, 2001).
{¶12} Gilbert argues that there is insufficient evidence to allow a reasonable juror to
conclude that he had constructive possession of the marijuana found in the trunk. Specifically,
Gilbert argues that the car did not belong to him, he was not driving, and he did not have keys to
the car. Further, Gilbert argues, the police found no evidence of drugs or drug paraphernalia on
his person and there was no evidence that Gilbert had accessed the trunk or the drugs. In
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essence, there was no evidence presented that he had exercised any dominion or control over the
drugs.
{¶13} However, the State did present evidence that could support a finding of joint
possession. Although the car did not belong to Gilbert or Javey, the two had exclusive control
over the car and everything inside. The two were pulled over about an hour and a half into their
trip from Columbus to Youngstown. Deputy Dan Kohler testified that the odor of raw marijuana
inside the passenger compartment was “overwhelming.” At trial, the State played a portion of
the audio recordings of Javey and Gilbert talking to each other in the back of the police car while
the deputies were conducting the search of the car. While the audio in places is somewhat
difficult to decipher, several statements made by Gilbert support a conclusion that he knew about
the drugs and was involved in their transport.
{¶14} In the tape when the drugs are discovered, Gilbert can be heard opining about
how strange it was that a car pulled out at the same time as theirs. When Javey offers his
thoughts, Gilbert admonishes him not to talk because he knows that cruisers have listening
devices. Notwithstanding his own advice, he continues to muse about the traffic stop, that
something is not quite right, but he can’t put his finger on it. As the officers continue the search,
(without any information having been communicated to him about the type of drugs discovered
in the trunk) he concludes “they want more than weed”. He continues to speculate about a car
that slowed up, an apparent reference to either an undercover vehicle, or someone who might
have alerted the police to their presence. At one point, he asked “who knew we was comin’
down here?”
{¶15} The totality of the circumstances established that Gilbert had knowledge of
marijuana in the trunk and was in joint possession of the car and its contents; Javey and Gilbert
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had control, exclusive of others. Considering all of the evidence, we conclude there is sufficient
evidence to support the conclusion that Gilbert had constructive, joint possession over the
marijuana. Gilbert’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
MR. GILBERT’S CONVICTION OF POSSESSION OF DRUGS IS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶16} In his second assignment of error, Gilbert argues that his conviction is against the
manifest weight of the evidence. Specifically, Gilbert argues that the weight of the evidence
supports the finding that he did not have dominion or control over the drugs in the trunk. We
disagree.
{¶17} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. Thompkins at 387; Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, ¶ 12. “Weight of the evidence concerns ‘the inclination of the
greater amount of credible evidence, offered in a trial, to support one side of the issue rather than
the other.’” (Emphasis sic.) Thompkins at 387, quoting Black’s at 1594.
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence, the
appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the
conflicting testimony.” Thompkins at 387. An appellate court must give deference to the jury’s
evaluation of the evidence and credibility of witnesses. State v. Ali, 9th Dist. No. 18841, 1998
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WL 597654, *5 (Sept. 9, 1998). An appellate court should exercise the power to reverse a
judgment as against the manifest weight of the evidence only in exceptional cases. State v.
Prade, 139 Ohio App.3d 676, 696 (9th Dist.2000).
{¶18} Deputy Schismenos testified that Gilbert’s demeanor caused him to become
suspicious, in that his nervousness seemed to signal something more than that normally
associated with a traffic stop. Deputy Kohler testified that the smell of the raw marijuana in the
passenger compartment was “overwhelming.” The police further testified that they found what
they believed to be marijuana residue (or “shake”) in the cup holder. Deputy Kohler testified
about finding an open package of cigarillos, which, according to Deputy Kohler, are often used
to smoke marijuana.
{¶19} The weight of the evidence supports the finding that Gilbert had joint possession
of the marijuana in the trunk. Gilbert had been travelling for over an hour and a half in a car
with a “strong” and “overwhelming” smell of marijuana. During the search of the car, Gilbert
tells Javey that the police “want more than weed” and to not say anything because police cruisers
are equipped with listening devices. Gilbert did not present any evidence at trial to rebut the
evidence that he and Javey had control over the car and the drugs, exclusive of others. The
weight of the evidence supports a finding that Gilbert had knowledge of the marijuana in the
trunk and was in joint possession of the car and its contents.
{¶20} Moreover, there is evidence that could allow a reasonable juror to conclude that
Gilbert was the one in charge. The police also found $595 in cash on Gilbert, and $69 on Javey.
In the audio recording of Javey and Gilbert talking to each other in the police car, Gilbert told
Javey not to say anything because the police will be recording their conversations. Gilbert goes
on to speculate that they had been set up. Javey can be heard mumbling in agreement. At one
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point, Gilbert tells Javey that he’s okay, in an apparent effort to calm Javey. Notwithstanding the
fact that the partial fingerprint found on the Ziploc bag of drugs did not match Gilbert or Javey,
there is still evidence that Gilbert had dominion or control over the marijuana. See State v.
Forney, 9th Dist. No. 24361, 2009-Ohio-2999, ¶ 16, quoting State v. Graves, 9th Dist. No.
08CA009397, 2009-Ohio-1133, ¶ 18 (“constructive possession exists ‘when a person knowingly
exercises dominion or control over an item, even without physically possessing it’”).
{¶21} Taking the evidence in its totality and giving the jury its due deference, we cannot
conclude that this is the exceptional case that requires reversal. Accordingly, Gilbert’s second
assignment of error is overruled.
III.
{¶22} Gilbert’s assignments of error are overruled and the judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
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 Medina, 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(C). 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.
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Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, J.
DICKINSON, J.
CONCUR.
APPEARANCES:
MICHAEL J. ASH, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.