State v. Delaney , 106 N.E.3d 920 ( 2018 )

[Cite as State v. Delaney, 2018-Ohio-727.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28663
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ZAKIYA DELANEY COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2016-03-0737-A
DECISION AND JOURNAL ENTRY
Dated: February 28, 2018
HENSAL, Presiding Judge.
{¶1} Zakiya Delaney appeals her convictions from the Summit County Court of
Common Pleas. We affirm.
I.
{¶2} While conducting surveillance on a house for possible drug activity, the police
observed Ms. Delaney and her brother, Andrew, leave the house in a rental vehicle. The police
performed a traffic stop on the vehicle and arrested both Ms. Delaney and Andrew. Officers
transported the siblings back to the house, which was owned by their mother, and executed a
search warrant. According to a detective, their mother was cooperative and directed the police to
the southeast bedroom.
{¶3} Upon searching the bedroom, the police discovered methamphetamine, heroin,
marijuana, digital scales, thousands of dollars in cash, and a loaded gun. The police found the
loaded gun, as well as two digital scales, inside of a purse, and discovered heroin and marijuana
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– as well Ms. Delaney’s credit card, insurance card, and social security card – inside the pocket
of a pair of jeans. A detective testified that a large portion of the drugs were in plain sight on top
of a dresser, and that the police discovered Ms. Delaney’s driver’s license in a cup on top of that
same dresser. The detective testified that the scene was indicative of drug trafficking, as
opposed to use, given the amount of drugs present, which he described as “a dealer’s amount of
dope[,]” the number of small baggies containing pre-measured drugs, the large amount of cash
present ($8,322), and the presence of digital scales. The detective further testified that the police
discovered no evidence indicating use, such as burnt spoons, needles, or straws.
{¶4} Another detective testified that Ms. Delaney admitted that it was her bedroom,
and that the jeans – as well as the marijuana inside the pocket – were hers. She, however, denied
ownership of the heroin. That detective also testified that Andrew admitted that the drugs were
his. Andrew later recanted, testifying that he only admitted that the drugs were his because he
did not want his mother and sister to go to jail. Andrew further testified that he did not know
whose drugs they were, or whose gun it was, and surmised that it could have belonged to one of
Ms. Delaney’s friends. Ms. Delaney exercised her right to not testify.
{¶5} The jury ultimately found Ms. Delaney guilty of aggravated trafficking in drugs
(methamphetamine), aggravated possession of drugs (methamphetamine), trafficking in heroin,
and possession of heroin. The trial court merged the respective possession convictions with the
trafficking convictions, and the State elected to proceed with sentencing on the trafficking
convictions. The trial court imposed two-year sentences on each trafficking count and ordered
the sentences to run concurrently. Ms. Delaney now appeals, raising four assignments of error
for our review. For ease of consideration, we will address Ms. Delaney’s second assignment of
error first.
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II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT OVERRULED A TIMELY DEFENSE
MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AS
THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED BY THE STATE
OF OHIO TO ESTABLISH A PRIMA FACIE CASE OF THE CRIMES
CHARGED TO WARRANT THE CASE BEING SUBMITTED TO THE JURY.
{¶6} In her second assignment of error, Ms. Delaney asserts that her convictions were
not supported by sufficient evidence. We disagree.
{¶7} Whether a conviction is supported by sufficient evidence is a question of law,
which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this
determination, we must view the evidence in the light most favorable to the prosecution:
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant's guilt beyond a reasonable doubt. [**5] 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, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶8} Regarding Ms. Delaney’s possession convictions, Section 2925.11(A) provides
that “[n]o person shall knowingly obtain, possess, or use a controlled substance or a controlled
substance analog.” “This Court has repeatedly held that a person may knowingly possess a
substance or object through either actual or constructive possession.” (Internal quotations and
citations omitted.) State v. Ibrahim, 9th Dist. Medina No. 12CA0048-M, 2013-Ohio-983, ¶ 8.
“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.”
(Internal quotations and citations omitted.) Id.; State v. Tucker, 9th Dist. Lorain No.
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13CA010339, 2016-Ohio-1353, ¶ 21. “This Court continues to recognize that the 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.” (Internal quotations and
citations omitted.) Ibrahim at ¶ 8. Notably, “[c]ircumstantial evidence is itself sufficient to
establish dominion and control over the controlled substance.” State v. Hilton, 9th Dist. Summit
No. 21624, 2004-Ohio-1418, ¶ 16.
{¶9} Here, the State presented evidence tying Ms. Delaney to the bedroom where the
police found the heroin and methamphetamine, as well as evidence indicating that the drugs were
found in and around her personal belongings (e.g., in her jeans and on top of a dresser next to her
driver’s license). Thus, there was circumstantial evidence indicating that Ms. Delaney
knowingly exercised dominion and control over the heroin and methamphetamine. State v.
Rowe, 9th Dist. Summit No. 27870, 2016-Ohio-5395, ¶ 21 (“There was evidence that [the
defendant] lived at the residence, and there was also evidence tying [the defendant] to the
bedroom where the heroin * * * w[as] found. * * * Thus, there was circumstantial evidence that
[the defendant] knowingly exercised dominion and control over the heroin * * *.”). Viewing the
evidence presented in a light most favorable to the State, we conclude that sufficient
circumstantial evidence existed to support Ms. Delaney’s possession convictions.
{¶10} Regarding Ms. Delaney’s trafficking convictions, Section 2925.03(A) provides
that “[n]o person shall knowingly * * * [s]ell or offer to sell a controlled substance or a
controlled substance analog * * * [or] [p]repare 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.”
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{¶11} “Circumstantial evidence has long been used to successfully support drug
trafficking convictions.” State v. Washington, 6th Dist. Ottawa No. OT-12-032, 2014-Ohio-
1008, ¶ 36. To that end, “[t]his Court has held that the convergence of illegal drugs, drug
paraphernalia (including baggies), and large sums of cash permit a reasonable inference that a
person was preparing drugs for shipment.” State v. Fry, 9th Dist. Summit No. 23211, 2007-
Ohio-3240, ¶ 50; State v. Rutledge, 6th Dist. Lucas No. L-12-1043, 2013-Ohio-1482, ¶ 15
(collecting cases and stating that “numerous courts have determined that items such as plastic
baggies, digital scales, and large sums of money are often used in drug trafficking and may
constitute circumstantial evidence * * *.”).
{¶12} Here, as previously noted, a detective testified that the scene was indicative of
drug trafficking given the amount of drugs present, which he described as “a dealer’s amount of
dope[,]” the number of small baggies containing pre-measured drugs, the large amount of cash
present ($8,322), and the presence of digital scales, which were found in Ms. Delaney’s purse.
Viewing the evidence presented in a light most favorable to the State, we conclude that sufficient
circumstantial evidence existed to support Ms. Delaney’s trafficking convictions. Ms. Delaney’s
second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE SINCE THE STATE OF OHIO FAILED TO
PROVE EACH AND EVERY ELEMENT OF THE CRIMES CHARGED.
{¶13} In her first assignment of error, Ms. Delaney argues that her convictions were
against the manifest weight of the evidence. If a defendant asserts that his or her convictions are
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
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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).
{¶14} Ms. Delaney argues that her convictions were against the manifest weight of the
evidence for a variety of reasons. She argues that Andrew was the subject of the police
surveillance and that the police were not aware of her – nor had they seen her at the house – prior
to the day in question, that she had no drugs on her when the police performed the traffic stop,
that there was no evidence indicating how long she had been inside the house, that Andrew was
the one using the bedroom where the police found the drugs, and that there was no evidence
indicating that she knew, or should have known, that drugs were in the bedroom.
{¶15} Ms. Delaney’s argument, however, ignores much of the evidence presented at
trial. For example, her argument ignores the fact that detectives testified that she told them the
bedroom – and the pair of jeans found therein containing heroin and marijuana – were hers, that
her social security card, credit card, and insurance card were also in the pocket of the jeans, that
her driver’s license was in a cup on top of the dresser where the police found drugs, and that the
police found the loaded gun and two digital scales inside of a purse, which Andrew indicated
belonged to her. Having reviewed the entire record, we cannot say that the jury clearly lost its
way such that Ms. Delaney’s convictions must be reversed. Ms. Delaney’s first assignment of
error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERR[]ED BY PROHIBITING DEFENSE COUNSEL
FROM CONDUCTING RECROSS OF A STATE WITNESS WHEN NEW
MATERIAL WAS BROUGH[T] UP BY THE PROSECUTOR ON REDIRECT.
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{¶16} In her third assignment of error, Ms. Delaney argues that the trial court abused its
discretion when it prohibited defense counsel from conducting a recross-examination of a
witness when the prosecutor brought up new material on redirect. She argues that the prosecutor
brought up the issue of DNA evidence, as well as text message extraction, on redirect with one
of the detectives, and that neither of these issues was discussed during that detective’s initial
direct examination.
{¶17} As the Ohio Supreme Court has stated, “the opportunity to recross-examine a
witness is within the discretion of the trial court.” State v. Faulkner, 56 Ohio St.2d 42, 46
(1978). An abuse of discretion implies that the trial court’s attitude was unreasonable, arbitrary,
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “Only where the
prosecution inquires into new areas during redirect examination must the trial court allow
defense the opportunity to recross-examine.” Faulkner at 46.
{¶18} Here, Ms. Delaney’s own trial counsel was the first attorney to raise the issue of
DNA evidence with the detective. It was only after her counsel, as well as Andrew’s counsel,
raised the issue on cross-examination that the prosecutor questioned the detective about DNA
evidence on redirect. Thus, we are unpersuaded by her assertion that she did not have an
opportunity to cross-examine the detective on the subject of DNA evidence.
{¶19} Regarding text message extraction, it is unclear how any information relating to
text messages was relevant to this case. Our review of the record indicates that the prosecutor
raised the issue on redirect during a hypothetical for the purpose of indicating that, just because it
may be possible to obtain certain information during an investigation, it is not always prudent or
necessary to do so. Even assuming without deciding that the trial court did err by failing to
allow Ms. Delaney’s counsel to recross-examine the detective relative to the prosecutor’s
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hypothetical, we fail to see – and she has not established – how this affected the outcome of the
trial. Thus, any error in this regard was harmless. Crim.R. 52 (“Any error, defect, irregularity,
or variance which does not affect substantial rights shall be disregarded.).
{¶20} Ms. Delaney’s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERR[]ED BY FAILING TO ALLOW DEFENSE
COUNSEL TO CROSS THE CODEFENDANT ON INFORMATION
PREVIOUSLY EXCLUDED BY A MOTION IN LIMINE WHEN
CODEFENDANT OPENED THE DOOR TO SUCH INFORMATION ON
DIRECT.
{¶21} In her fourth assignment of error, Ms. Delaney argues that the trial court erred by
denying her trial counsel’s request to cross-examine Andrew on information that was previously
excluded by a motion in limine, but which Andrew “opened the door” on. As the State points
out, at trial, Ms. Delaney requested to cross-examine one of the detectives, not Andrew, and
proffered testimony from the detective, not Andrew. Because Ms. Delaney’s objection at trial, as
well as the proffered testimony, related to a detective, not Andrew, she has not preserved that
issue as it relates to Andrew on appeal. Accordingly, Ms. Delaney’s fourth assignment of error
is overruled.
III.
{¶22} Ms. Delaney’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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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 Summit, 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.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
SCHAFER, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
ANGELA M. KILLE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.