State v. Pigue , 2013 Ohio 5462 ( 2013 )

[Cite as State v. Pigue, 2013-Ohio-5462.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
: Appellate Case No. 2013-CA-20
Plaintiff-Appellee :
: Trial Court Case No. 2012-CR-596
v. :
:
MAURICE PIGUE : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 13th day of December, 2013.
...........
ELIZABETH A. ELLIS, Atty. Reg. #0074332, Greene County Prosecutor’s Office, 55 Greene
Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. #0080433, Post Office Box 137, Germantown, Ohio 45327
Attorney for Defendant-Appellant
.............
HALL, J.,
{¶ 1} Maurice Pigue appeals from his conviction and sentence following a jury trial on
one count of cocaine possession, a fourth-degree felony.
{¶ 2} Pigue’s appointed appellate counsel has filed a brief pursuant to Anders v.
2
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), asserting the absence of any
non-frivolous issues for our review. Counsel did identify two potential assignments of error
dealing with a jury instruction and the sentence imposed. Counsel determined, however, that
these potential assignments of error would be frivolous. By entry, we informed Pigue of the
Anders filing and allowed him time to submit a pro se brief. He failed to do so. The appeal is now
before us for disposition.
{¶ 3} The record reflects that police sergeant Steve Lane observed Pigue walking down
East Church Street in Xenia. Lane recognized Pigue and knew he had an outstanding arrest
warrant. After driving past Pigue, Lane confirmed the warrant and alerted other police units. He
then turned around and drove toward Pigue again. Lane noticed that Pigue was watching him.
When Lane got close, Pigue darted between two houses and went behind a boarded-up residence
at 765 East Church Street. Lane jumped out of his patrol car and started around the house in
pursuit. As Lane went around the side of the house, Pigue unexpectedly came back around
toward the officer. Lane testified that Pigue was out of his sight for a few seconds.
{¶ 4} Lane confronted Pigue and ordered him to the ground. The officer noticed that
Pigue’s pants and boxer shorts were pulled part way down, and “the top third of his butt crack
was now showing.” Pigue’s pants had been pulled up normally before he darted behind the
residence. Lane handcuffed Pigue and conducted a pat down, which resulted in the discovery of
marijuana, $1,700 cash, and a cell phone.
{¶ 5} Based on Pigue’s behavior, Lane suspected that he had “ditched something”
behind the residence at 765 East Church Street. In particular, Lane found it suspicious that Pigue
had darted behind the building only to return seconds later with his pants partially down. Lane
3
explained that “it’s very common for people who possess drugs, particularly crack cocaine, to
conceal it in-between their rear end, in the butt cheeks * * *.” The appearance of Pigue’s pants
caused Lane to believe he had removed drugs and discarded them behind the residence. As a
result, Lane looked behind the house, which was only a few feet from where he had confronted
Pigue, and saw a bag of crack cocaine, a bag of marijuana, and a cigar box in the grass against the
foundation. Lane opened the cigar box and found more crack cocaine. Lane believed that the
items very recently had been placed there because they were not weathered and had not “settled
down” into the grass. Rather, “[t]hey were kind of sitting up on top of things.”
{¶ 6} Based primarily on Lane’s testimony,1 a jury found Pigue guilty of possessing
between five and ten grams of cocaine. The trial court imposed a seventeen-month prison
sentence. It also notified Pigue about post-release control and ordered him to pay court costs.
This appeal followed.
{¶ 7} Upon review, we agree with appointed appellate counsel that the two potential
assignments of error mentioned above are frivolous. The first concerns a jury instruction
regarding constructive possession. The trial court instructed the jury as follows:
Possession is an essential element of the offense of Possession of Cocaine.
Possession is a voluntary act if the possessor knowingly possessed the cocaine. A
person has possession when he has the ability to direct or control its use.
Ownership is not necessary.
Possession may be actual or constructive. While mere presence in the
1
In addition to Lane’s testimony, the State presented testimony from officer Anthony Vitale, who took photographs and collected
evidence, BCI forensic scientist Robin Roggenbeck, who unsuccessfully sought to obtain fingerprint evidence, and former BCI drug analyst
Beverly Wiltshire, who confirmed the presence of cocaine in the bags at issue and testified about their weight.
4
vicinity of cocaine is insufficient to establish possession, constructive possession
may be established where the Defendant was able to exercise dominion or control
over the cocaine. Readily usable drugs in close proximity to a defendant may
constitute sufficient circumstantial evidence to support a finding of constructive
possession.
However, the mere fact that cocaine is located in close proximity does not,
in itself, constitute constructive possession. It must be shown that the person knew
of the presence of the cocaine. A person may possess or control cocaine belonging
to another.
{¶ 8} We believe the foregoing instruction, which Pigue affirmatively agreed to below,
conveyed the essence of constructive possession. Cf. State v. Harry, 12th Dist. Butler No.
CA2008-01-0013, 2008-Ohio-6380, ¶37-39 (upholding an instruction similar to the one given in
Pigue’s case). An argument seeking reversal on the basis that the trial court’s instruction was
erroneous or inadequate is frivolous.
{¶ 9} We reach the same conclusion with regard to the potential assignment of error
concerning Pigue’s sentence. The trial court considered the statutory principles and purposes of
sentencing as well as the seriousness and recidivism factors. The trial court also considered the
statutory factors relevant to imposing a prison sentence for a fourth-degree felony. Its
seventeen-month sentence was within the statutory range, was not a maximum sentence, and was
supported by the record. In this regard, we note that Pigue violated the conditions of his bond
during the pendency of the case and had several prior felony convictions. We see no
non-frivolous basis for challenging the sentence on appeal.
[Cite as State v. Pigue, 2013-Ohio-5462.]
{¶ 10} Finally, we have performed our duty under Anders to conduct an independent
review of the record and have found no non-frivolous issues for review. In particular, we have
considered a manifest-weight-of-the-evidence challenge to a finding of constructive possession.
But such a challenge would be frivolous. As set forth above, Lane watched Pigue run behind a
building for a few seconds and then return. When Pigue ran behind the building, his pants were
up. When he returned, they were partially down. Lane testified that it is common for people to
conceal drugs in their buttocks, and he suspected that Pigue had lowered his pants to remove
drugs and discard them. The fact that Pigue went behind the building for a few seconds and then
returned also supports an inference that he discarded something behind the house. Finally, Lane
testified that he found the drugs only a few feet from where he confronted Pigue. Lane explained
that the drugs appeared to have been freshly dropped and that people ordinarily “don’t just
abandon crack cocaine” unless they are trying to prevent police from discovering it. In light of
Lane’s testimony, we find no potentially meritorious argument on the issue of constructive
possession.
{¶ 11} We also have considered the possibility of a challenge to Lane’s pat down of
Pigue, which resulted in the discovery of marijuana, $1,700 cash, and a cell phone. Although
Pigue apparently was not charged with marijuana possession, testimony about what Lane found
in his possession was introduced at trial. In any event, an argument about the propriety of the pat
down would be frivolous. Once he lawfully observed Pigue on the street and confirmed an active
arrest warrant, Lane was entitled to take Pigue into custody and to conduct a search incident to
arrest. Therefore, we see no potentially meritorious issue with regard to the pat down.
{¶ 12} The judgment of the Greene County Common Pleas Court is affirmed.
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[Cite as State v. Pigue, 2013-Ohio-5462.]
FAIN, P.J., and FROELICH, J., concur.
Copies mailed to:
Elizabeth A. Ellis
Kirsten Knight
Maurice Pigue
Hon. Stephen Wolaver