State v. Smith ( 2011 )

[Cite as State v. Smith, 2011-Ohio-6466.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96348
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
STANLEY SMITH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-540542
BEFORE: Celebrezze, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: December 15, 2011
ATTORNEY FOR APPELLANT
Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Andrew J. Santoli
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Stanley Smith, appeals his convictions for drug possession and
drug trafficking. After careful review of the record and relevant case law, we affirm in
part, reverse in part, and remand.
{¶ 2} On February 4, 2010, Detective Alvin Dancy of the Cuyahoga Metropolitan
Housing Authority Police Department (“CMHA”) received an anonymous tip that
appellant “had several warrants and was hiding out at 4613 Louise Harris Drive in the city
of Cleveland.” Upon receiving the anonymous tip, Det. Dancy contacted the Cuyahoga
County Sheriff’s Department and confirmed appellant’s outstanding warrants.
{¶ 3} Det. Dancy and several officers responded to the residence where appellant
was allegedly hiding. Upon arriving at the residence, Det. Dancy and the officers
identified themselves and were let into the residence by Romon Lavant. At that time,
Det. Dancy discovered appellant in the residence and placed him under arrest. Det.
Dancy testified that appellant was read his Miranda rights and indicated that he
understood the extent of his rights. Prior to placing appellant into the patrol car, Det.
Dancy conducted a pat down of appellant and located three rocks of crack cocaine in his
right front pants pocket. Additionally, Det. Dancy recovered $2,160 from appellant’s
left front pants pocket. Subsequent forensic analysis conducted by Nicole Allen of the
Cuyahoga County Regional Forensic Science Laboratory confirmed that the substance
found in appellant’s possession was crack cocaine.
{¶ 4} On August 18, 2010, appellant was indicted by the Cuyahoga County Grand
Jury in a three-count indictment alleging drug trafficking, in violation of R.C.
2925.03(A)(2), with schoolyard and forfeiture specifications; drug possession, in
violation of R.C. 2925.11(A), with schoolyard and forfeiture specifications; and
possessing criminal tools, in violation of R.C. 2923.24(A). On January 4, 2011,
appellant filed a motion to suppress the evidence obtained during his arrest. On January
24, 2011, the trial court held a suppression hearing, after which appellant’s motion to
suppress was denied.
{¶ 5} On January 26, 2011, appellant executed a jury trial waiver, and a bench
trial commenced. At the conclusion of trial, appellant was found guilty of drug
trafficking and drug possession. He was found not guilty of possession of criminal
tools. Additionally, he was found not guilty as to the schoolyard and forfeiture
specifications. The trial court found that the drug trafficking and drug possession
convictions were allied offenses, and the state elected to pursue sentencing on the drug
trafficking conviction. The trial court imposed a six-month sentence and ordered
appellant to serve it consecutively to his sentence in an unrelated case.
{¶ 6} Appellant brings this timely appeal, raising five assignments of error:
{¶ 7} “I. The trial court erred in denying appellant’s motion to suppress.”
{¶ 8} “II. The trial court erred by denying appellant’s motion to dismiss or his
alternative motion for continuance to obtain information the arresting officer used to
prepare the police report.”
{¶ 9} “III. The trial court erred by admitting State’s Exhibits 1 & 2 because the
state did not establish a proper chain of custody.”
{¶ 10} “IV. The trial court erred when it denied appellant’s motion for acquittal
under Crim.R. 29 because the state failed to present sufficient evidence to establish
beyond a reasonable doubt the elements necessary to support the convictions.”
{¶ 11} “V. Appellant’s convictions are against the manifest weight of the
evidence.”
Legal Analysis
I
{¶ 12} In his first assignment of error, appellant argues that the trial court erred in
denying his motion to suppress the evidence obtained during the officers’ warrantless
entry into the residence.
{¶ 13} A motion to suppress presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8. “When considering
a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the
best position to resolve factual questions and evaluate the credibility of witnesses. * * *
Consequently, an appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. *** Accepting these facts as true, the
appellate court must then independently determine, without deference to the conclusion of
the trial court, whether the facts satisfy the applicable legal standard.” (Internal citations
omitted.) Id.
{¶ 14} The Fourth Amendment to the United States Constitution provides: “The
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”
{¶ 15} The Fourth Amendment protects against unreasonable government
intrusions into areas where legitimate expectations of privacy exist. United States v.
Chadwick (1977), 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538. The Fourth Amendment
proscribes all unreasonable searches and seizures, and it is a cardinal principle that
“searches conducted outside the judicial process, without prior approval by a judge or
magistrate, are per se unreasonable under the Fourth Amendment, subject to only a few
specifically established and well-delineated exceptions.” Mincey v. Arizona (1978), 437
U.S. 385, 390, 98 S. Ct. 2408, 57 L. Ed. 2d 290; Katz v. United States (1967), 389 U.S. 347,
357, 88 S. Ct. 507, 19 L. Ed. 2d 576; South Dakota v. Opperman (1976), 428 U.S. 364, 96
S. Ct. 3092, 49 L. Ed. 2d 1000; and Coolidge v. New Hampshire (1971), 403 U.S. 443, 91
S. Ct. 2022, 29 L. Ed. 2d 564. The touchstone of a Fourth Amendment analysis of
lawfulness of a search is whether a person has a constitutionally protected reasonable
expectation of privacy. Katz, supra; California v. Ciraolo (1986), 476 U.S. 207, 106
S. Ct. 1809, 90 L. Ed. 2d 210.
{¶ 16} Initially, we note that an individual challenging the legality of a search or
seizure bears the burden of proving standing. Rakas v. Illinois (1978), 439 U.S. 128,
99 S. Ct. 421, 58 L. Ed. 2d 387. The burden is met by establishing that the person had a
legitimate expectation of privacy in the area searched. State v. Steele (1981), 2 Ohio
App. 3d 105, 107, 440 N.E.2d 1353. A legitimate expectation of privacy is one that
society is prepared to recognize as reasonable. Rakas at 143. Status as an overnight
guest is sufficient to show that the person had an expectation of privacy in the home.
Minnesota v. Olson (1990), 495 U.S. 91, 96-97, 110 S. Ct. 1684, 109 L. Ed. 2d 85. Thus,
an overnight guest has standing to challenge the legality of a search. State v. Dennis, 79
Ohio St. 3d 421, 1997-Ohio-372, 683 N.E.2d 1096.
{¶ 17} In the present case, appellant failed to produce any evidence at the
suppression hearing that he lived in the residence or was an overnight guest. A trial
court cannot be expected to assume that privacy interests exist. State v. Rodgers (Apr.
19, 1984), Cuyahoga App. Nos. 47146, 47147, and 47151.
{¶ 18} The record reflects that Det. Dancy was the only witness to testify at the
suppression hearing, and his testimony failed to establish appellant’s privacy interest in
the residence. Since appellant failed to produce any evidence of his privacy interests, he
has not met his burden of establishing his right to challenge the lawfulness of the search.
See Steele at 109.
{¶ 19} Moreover, had appellant established that he had a privacy interest in the
residence, the search was still constitutionally valid based upon Romon Lavant’s
voluntary consent.
{¶ 20} When one’s home is to be searched, the warrant requirement embodied in
the Fourth Amendment constitutes the most compelling protection against unreasonable
governmental intrusions. Welsh v. Wisconsin (1984), 466 U.S. 740, 104 S. Ct. 2091, 80
L. Ed. 2d 732. Warrants are generally required to search a person’s home or his person
unless “the exigencies of the situation” make the needs of law enforcement so compelling
that the warrantless search is objectively reasonable under the Fourth Amendment.
McDonald v. United States (1948), 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153. Thus, for
a warrantless search to be valid, it must fall within one of the narrow and specifically
delineated exceptions to the warrant requirement. Thompson v. Louisiana (1985), 469
U.S. 17, 105 S. Ct. 409, 83 L. Ed. 2d 246. One of the established exceptions to the
warrant requirement is a search that is conducted with voluntary consent. State v. Faia
(July 23, 1998), Cuyahoga App. No. 73074, citing State v. Sneed (1992), 63 Ohio St. 3d 3,
6-7, 584 N.E.2d 1160.
{¶ 21} “A police officer may validly enter and search a home, without a warrant,
when the officer has obtained the voluntary consent of an occupant who shares, or is
reasonably believed to share, authority over the area in common with a non-present
co-occupant. (Internal citations omitted).” State v. Purser, Greene App. No. 2006 CA
14, 2007-Ohio-192, ¶12. “Common authority” rests on “mutual use of the property by
persons having joint access or control for most purposes.” United States v. Matlock
(1974), 415 U.S. 164, 172, 94 S. Ct. 988, 39 L. Ed. 2d 242. The burden of establishing
an individual’s common authority over the subject premises rests upon the state. Id.
{¶ 22} “Further, if consent is given by a third party who in fact does not have valid
authority, the determination of whether to enter must ‘be judged against an objective
standard: would the facts available to the officer at the moment * * * “warrant a man of
reasonable caution in the belief”’ that the consenting party had authority over the
premises?’ Illinois v. Rodriguez (1990), 497 U.S. 177, 188, 110 S. Ct. 2793, 111
L. Ed. 2d 148, quoting Terry v. Ohio (1968), 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d
889.” State v. Huntington, Wood App. No. WD-10-007, 2010-Ohio-3922, ¶20.
{¶ 23} During the suppression hearing, Det. Dancy testified that he researched
CMHA’s leaseholder database and discovered that Rokeda Lavant was the confirmed
leaseholder of the residence at issue. Det. Dancy testified that, upon arriving at the
residence, “we walked up to the door, knocked on the door, and it was opened by an
individual by the name of Romon Lavant. We identified ourselves. He greeted us and
invited us inside.” In light of facts available to Det. Dancy at the time he interacted with
Mr. Lavant, we find that the reasonable person could believe that Mr. Lavant had
authority over the premises to consent to the officers’ entry. Accordingly, we conclude
that the officers’ entrance into the residence was constitutional.
{¶ 24} Appellant’s first assignment of error is overruled.
II
{¶ 25} In his second assignment of error, appellant argues that the trial court erred
by denying his motion to dismiss or his alternative motion for continuance to obtain
information Det. Dancy used to prepare appellant’s police report. Appellant contends
that the trial court’s failure to grant his motions violated his constitutional rights to due
process and a fair trial. A trial court’s decision regarding the regulation of discovery
will not be reversed on appeal absent an abuse of discretion. State ex rel. Daggett v.
Gessaman (1973), 34 Ohio St. 2d 55, 57, 295 N.E.2d 659. A trial court abuses its
discretion only if its decision is unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore (1983), 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140.
{¶ 26} The United States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon requests violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S. Ct.
1194, 10 L. Ed. 2d 215. Additionally, the Criminal Rules mandate that the prosecutor
“shall provide * * * the following items related to the particular case indictment,
information, or complaint, and which are material to the preparation of a defense, or are
intended for use by the prosecuting attorney as evidence at the trial, or were obtained
from or belong to the defendant, within the possession of, or reasonably available to the
state, subject to the provisions of this rule: * * * (5) any evidence favorable to the
defendant and material either to guilt or punishment.” Crim.R. 16(B)(5).
{¶ 27} Favorable evidence under Brady includes both exculpatory and
impeachment evidence, but the evidence must be both favorable and material before
disclosure is required. Id., citing United States v. Bagley (1985), 473 U.S. 667, 674, 105
S. Ct. 3375, 87 L. Ed. 2d 481. Evidence is material under Brady only if there exists a
“reasonable probability” that the result of the trial would have been different had the
evidence been disclosed to the defense. Id., citing Kyles v. Whitley (1995), 514 U.S.
419, 433-434, 115 S. Ct. 1555, 131 L. Ed. 2d 490, quoting Bagley at 682. “A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the outcome.” Id.,
citing State v. Johnston (1998), 39 Ohio St. 3d 48, 529 N.E.2d 898, paragraph five of the
syllabus.
{¶ 28} If a party fails to comply with Crim.R. 16 or an order issued under it, “the
court may order such party to permit the discovery or inspection, grant a continuance, or
prohibit the party from introducing in evidence the material not disclosed, or it may make
such other order as it deems just under the circumstances.” Crim.R. 16(L)(1), formerly
Crim.R. 16(E)(3).
{¶ 29} In the case sub judice, Det. Dancy testified that as common practice, the
CMHA radio communication center contemporaneously stores radio updates received
from officers in the field as they effectuate an arrest. The information received by the
radio communication center is then entered into CMHA’s Computer Aided-Dispatch
recording system (“dispatch log”). Subsequently, the dispatch log is used by the officer
to prepare a police report once he returns to the station.
{¶ 30} Appellant contends that the trial court erred in denying the dismissal of his
indictment based on the state’s failure to provide him with the dispatch logs during the
discovery process. Appellant argues that the information in the dispatch log was
discoverable pursuant to Crim.R. 16 because it was used to compile the police report and
potentially contained contradictory or exculpatory information. We disagree.
{¶ 31} At trial, Det. Dancy explained that he used the dispatch log to draft his
police report and that the information contained in the dispatch log was duplicated in the
report. Det. Dancy testified that the remainder of the police report was based on his own
personal recollection of the chronological events associated with appellant’s arrest. In
our view, Det. Dancy’s testimony reflects that the information contained in the dispatch
log was included in the police report, which was given to appellant at the onset of the
discovery process. In light of Det. Dancy’s testimony, we are unable to conclude that
the outcome of appellant’s trial would have been different had the dispatch logs been
disclosed to him.
{¶ 32} Furthermore, the state is only required to disclose information that is within
its possession or is readily available to it. The prosecution stated, “under Criminal Rule
16 and the local rule we are required to provide full and open discovery. The police
report, criminal records, lab report, school map has [sic] all been provided to defense
counsel. * * * At no time throughout the pendency of this case has the State intentionally
or unintentionally hid any evidence.”
{¶ 33} Additionally, the information contained in the dispatch log was not readily
available to the state because it is destroyed in the normal course of business. Appellant
had the opportunity to file a subpoena for the dispatch logs prior to the January 26, 2011
trial date and failed to do so. The trial court did not abuse its discretion in denying
appellant’s motion to dismiss and motion for continuance as requested under Crim.R.
16(L)(1).
{¶ 34} Appellant’s second assignment of error is overruled.
III
{¶ 35} In his third assignment of error, appellant argues that the trial court erred by
admitting evidence where the state failed to establish a proper chain of custody.
{¶ 36} The chain of custody is part of the authentication and identification
requirement in Evid.R. 901. State v. Brown (1995), 107 Ohio App. 3d 194, 200, 668
N.E.2d 514. The state bears the burden of establishing a proper chain of custody. State
v. Moore (1973), 47 Ohio App. 2d 181, 183, 353 N.E.2d 866. However, the state has no
duty to eliminate every possibility that tampering or substitution occurred. Id. The
state must only show that it is reasonably certain that a substitution, tampering, or
alteration did not occur. Id.
{¶ 37} Chain of custody can be established by direct testimony or by inference.
State v. Conley (1971), 32 Ohio App. 2d 54, 60, 288 N.E.2d 296. The issue as to
whether there is a break in the chain of custody is a determination left to the jury.
Columbus v. Marks (1963), 118 Ohio App. 359, 194 N.E.2d 791. Any breaks in the
chain of custody go to the weight afforded to the evidence, not to its admissibility. Id.
See, also, State v. Mays (1996), 108 Ohio App. 3d 598, 671 N.E.2d 553.
{¶ 38} At trial, the state submitted the following items into evidence: (1) the drugs
recovered from appellant’s right front pants pocket, and (2) the lab result confirming the
drugs were crack cocaine. The testimony at trial from Det. Dancy and Nicole Allen laid
the foundation to establish a proper chain of custody. Therefore, appellant may only
challenge the weight of the evidence, which he does in his fifth assignment of error.
However, he may not successfully challenge the admissibility of the evidence itself.
{¶ 39} Appellant’s third assignment of error is overruled.
IV
{¶ 40} In his fourth assignment of error, appellant argues that the state failed to
present sufficient evidence to sustain his convictions and, therefore, the trial court should
have granted his motion for acquittal.
{¶ 41} Under Crim.R. 29(A), a court “shall order the entry of a judgment of
acquittal of one or more offenses * * * if the evidence is insufficient to sustain a
conviction of such offense or offenses.” A challenge to the sufficiency of the evidence
supporting a conviction requires a court to determine whether the state has met its burden
of production at trial. State v. Thompkins, 78 Ohio St. 3d 380, 390, 1997-Ohio-52, 678
N.E.2d 541. On review for sufficiency, courts are to assess not whether the state’s
evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction. Id. The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt. State v.
Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
A. Drug Trafficking
{¶ 42} Appellant first challenges his drug trafficking conviction. Drug trafficking
under R.C. 2925.03(A)(2) provides:
{¶ 43} “No person shall knowingly * * * [p]repare for shipment, ship, transport,
deliver, prepare for distribution, or distribute a controlled substance, when the offender
knows or has reasonable cause to believe that the controlled substance is intended for sale
or resale by the offender or another person.”
{¶ 44} At trial, the state produced evidence that appellant was in possession of
three rocks of crack cocaine. Det. Dancy testified that, based on his training and
experience with street level narcotics, he believed the size of the rocks and the amount of
cash found in appellant’s possession were indicative of drug trafficking. Furthermore,
Det. Dancy testified that appellant demonstrated no signs of drug abuse and had no crack
cocaine paraphernalia on his person at the time of his arrest.
{¶ 45} Appellant correctly points out that none of the accouterments associated
with drug trafficking were found on him. The crack cocaine found was not individually
packaged for resale, and appellant did not possesses packaging materials, scales, or
weapons. However, these facts are not dispositive of the issue. This court has held
that, “[w]ith respect to the charge of possession of drugs for sale [R.C. 2925.03], an
inference may be drawn from the circumstances surrounding the defendant at the time of
his arrest and the quantity and character of the narcotics seized at the time.” State v.
Conner, Cuyahoga App. No. 84073, 2005-Ohio-1971, ¶57, citing State v. Jones (Dec. 26,
1973), Franklin App. No. 73AP-338.
{¶ 46} In State v. Bryant (June 2, 1994), Cuyahoga App. No. 65614, this court
found that sufficient evidence of drug trafficking existed based on “the large number of
rocks in appellant’s possession, large amount of cash on appellant, an unlikely
explanation for carrying the cash, that appellant was better dressed than the others, and
the behavior of appellant and the other men when they saw the marked police car.” Id.
{¶ 47} Similarly, in State v. Young, Cuyahoga App. No. 92744, 2010-Ohio-3402,
this court affirmed the defendant’s conviction for drug trafficking where appellant was
located in a high drug area; possessed a large amount of crack cocaine, both cut and
uncut; possessed a large sum of money; and had no crack cocaine paraphernalia on his
person at the time of his arrest, suggesting that the drugs he possessed were not for
personal use. Id. at ¶18, citing State v. Batin, Stark App. No. 2004-CA-00128,
2005-Ohio-36.
{¶ 48} In the case at hand, such reasonable inferences of drug trafficking are not
present. In contrast to Bryant and Young, where Bryant was in possession of
approximately 34 rocks of crack cocaine and Young was in possession of 12.29 grams of
crack cocaine, appellant was found in possession of three rocks of crack cocaine,
weighing less than one gram combined. Furthermore, the record does not indicate that
appellant was located in a high drug area, and Det. Dancy testified that the three rocks of
crack cocaine were not individually packaged. In our view, the nature of appellant’s
arrest and the quantity of crack cocaine found in his possession failed to establish an
inference of drug trafficking. 1 See State v. Collins, Cuyahoga App. No. 95422,
2011-Ohio-4808, ¶27-28 (“Establishing that the person committed a crime is not possible
solely using inferences from assumptions about conduct without factual evidence
supporting the actual elements of the crime charged. * * * Had the legislature
included the phrases ‘possession of an amount indicating sale or resale’ or ‘receiving an
1 Although more adequately addressed in a manifest weight analysis, we
note that the trial court accepted the testimony of appellant’s mother, Regina
Smith, as it related to the $2,160 found in appellant’s possession. At trial, Smith
testified that she gave appellant $2,300 from her tax refund check on February 1,
2010 so he could hire an attorney for representation in an unrelated matter.
Because the trial court is in the best position to weigh the credibility of witnesses,
we are unable to weigh the amount of money found on appellant as a factor in our
drug trafficking analysis.
amount indicating sale or resale,’ the task of meeting the elements of R.C. 2925.03(A)(2)
would be simple.”).
{¶ 49} In light of the above, we sustain appellant’s fourth assignment of error as it
relates to the drug trafficking conviction.
B. Drug Possession
{¶ 50} Appellant was convicted of drug possession under R.C. 2925.11(A), which
provides that “[n]o person shall knowingly obtain, possess, or use a controlled
substance.”
{¶ 51} A person acts “knowingly” when “he is aware that his conduct will
probably cause a certain result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such circumstances probably exist.”
R.C. 2901.22(B). Knowledge is generally not susceptible to direct proof, but must be
determined through inferences drawn from the surrounding facts and circumstances. State
v. Green (Apr. 20, 1988), Hamilton App. No. C-860791.
{¶ 52} “‘Possess’ or ‘possession’ means having control over a thing or substance,
but may not be inferred solely from mere access to the thing or substance through
ownership or occupation of the premises upon which the thing or substance is found.”
R.C. 2925.01(K). Possession may be actual or constructive. State v. Haynes (1971), 25
Ohio St. 2d 264, 269-270, 267 N.E.2d 787. Although circumstantial evidence is sufficient
to support the element of constructive possession, constructive possession cannot be
inferred by a person’s mere presence in the vicinity of contraband. See Jenks; State v.
Giles (May 12, 1994), Cuyahoga App. No. 63709. Constructive possession requires some
evidence that the person exercised or has the power to exercise dominion or control over
the object, even though that object may not be within his immediate physical possession.
State v. Wolery (1976), 46 Ohio St. 2d 316, 332, 348 N.E.2d 351.
{¶ 53} As stated, Det. Dancy testified that he discovered three rocks of crack
cocaine in appellant’s pants pocket after searching appellant for weapons or contraband
prior to placing him in the zone car. In light of Det. Dancy’s testimony, we find that the
state presented sufficient evidence that appellant knowingly possessed crack cocaine.
{¶ 54} Appellant’s fourth assignment of error is overruled as it relates to the drug
possession conviction.
V.
{¶ 55} In his fifth assignment of error, appellant argues that his convictions were
against the manifest weight of the evidence. In reviewing a claim challenging the
manifest weight of the evidence, “[t]he question to be answered is whether there is
substantial evidence upon which a jury could reasonably conclude that all the elements
have been proved beyond a reasonable doubt. In conducting this review, we must
examine the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.” (Internal quotes and citations omitted.) State v. Leonard, 104 Ohio
St.3d 54, 81, 2004-Ohio-6235, 818 N.E.2d 229.
{¶ 56} Because we find that the evidence was insufficient as to the drug trafficking
conviction, we only consider appellant’s manifest weight challenge as it relates to the
drug possession conviction.
{¶ 57} After examining the entire record, weighing the evidence and all
reasonable inferences, we are unable to conclude that the court clearly lost its way and
created a manifest miscarriage of justice in convicting appellant of drug possession. For
the reasons discussed under the sufficiency of the evidence analysis, the record
demonstrates that appellant knowingly possessed crack cocaine. Although appellant
disputes the allegation that he possessed crack cocaine at the time of his arrest, the trier of
fact was in the best position to weigh the credibility of the witnesses and was free to rely
on the testimony of Det. Dancy. Additionally, based on the testimony of Det. Dancy and
Nicole Allen, we are unable to conclude that the evidence in the state’s custody was
tampered with or altered in any way. Accordingly, the weight of the evidence supported
appellant’s drug possession conviction.
{¶ 58} Appellant’s fifth assignment of error is overruled.
{¶ 59} In conclusion, the trial court’s judgment is affirmed as to appellant’s
conviction for drug possession. Appellant’s drug trafficking conviction is reversed and
remanded and, upon remand of the case, the conviction shall be vacated and appellant
shall be resentenced on the drug possession count because he was originally sentenced on
the drug trafficking count.
{¶ 60} This cause is affirmed in part, reversed in part, and remanded to the lower
court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR