State v. Foster , 2023 Ohio 746 ( 2023 )

[Cite as State v. Foster, 2023-Ohio-746.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 21CA3967
:
v. :
: DECISION AND JUDGMENT
DIANNA L. FOSTER, : ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Valerie M. Webb, The Law Office of Valerie M. Webb, LLC, Portsmouth,
Ohio, for Appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, Matthew F. Loesch,
Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Appellant Dianna L. Foster, “Foster,” appeals the October 13,
2021 Judgment Entry of the Scioto County Court of Common Pleas. Foster
was convicted of four counts: Trafficking in Cocaine, Possession of
Cocaine, Trafficking in Marihuana, and Possession of Marihuana. On
appeal, Foster asserts three of her convictions are not supported by sufficient
evidence and are also against the manifest weight of the evidence. For the
reasons which follow, we find no merit to the arguments raised in this
Scioto App. No. 21CA3967 2
appeal. Accordingly, we overrule Foster’s assignments of error and affirm
the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On January 12, 2021, Foster was indicted on four drug-related
counts: Count One, Trafficking in Cocaine, R.C.
2925.03(A)(2)/2925.03(C)(4)(f); Count Two, Possession of Cocaine, R.C.
2925.11(A)/2925.11(C)(4)(e); Count Three, Trafficking in Marihuana, R.C.
2925.03(A)(2)/2925.03(C)(3)(c); and Count Four, Possession of Marihuana,
R.C. 2925.11(A)/2925.11(C)(3)(c). Counts One and Two are first-degree
felonies. Count Three is a fourth-degree felony and Count Four is a fifth-
degree felony.
{¶3} The indictment stemmed from events which occurred on
November 20, 2020 on S.R. 104 in Scioto County. On that date, Foster was
traveling southbound with a co-defendant, Sonya D. Adams, “Adams,” in
Adams’ black Ford Explorer. Adams’ vehicle was rear-ended by another
vehicle after Adams attempted to avoid a collision with a deer. Upon
investigation of the accident, officers of the Ohio State Highway Patrol
found substances thought to be cocaine and marihuana in Adams’ vehicle.
{¶4} Subsequent to her arrest upon the indictment, Foster was
arraigned and allowed to sign a recognizance bond. She remained out of jail
Scioto App. No. 21CA3967 3
during the trial court proceedings. On October 7, 2021, Adams pled guilty
to one count of trafficking in cocaine and one count of trafficking in
marihuana.
{¶5} Foster elected to proceed to jury trial which occurred on October
12 and October 13, 2021. At the outset, Foster admitted guilt to Count Four,
possession of marihuana. The State of Ohio presented the testimony of three
witnesses, Ohio State Highway Patrol Troopers Nick Lewis and Benjamin
Wallace, and Helena Singleton, a criminologist from the Ohio Bureau of
Criminal Investigation. Ms. Singleton’s testimony regarding the analysis of
the substances found in Adams’ vehicle and the reports prepared as a result
is not being challenged in this appeal.
{¶6} Trooper Benjamin Wallace testified that upon arrival at the
accident scene, he first made contact with Adams. As he was walking to
Adams’ vehicle he smelled the odor of raw marihuana coming from it. He
could also smell the odor of burnt marihuana about Adams’ breath and
person. Dianna Foster was the front seat passenger.
{¶7} Trooper Wallace brought Adams and Foster back to his cruiser
and told them he would perform a pat-down search for weapons. Trooper
Wallace questioned Adams and she admitted they had been smoking
marihuana earlier in the day. Adams also admitted there was marihuana in
Scioto App. No. 21CA3967 4
the vehicle. Trooper Wallace then advised Adams and Foster of their
Miranda rights.
{¶8} When Troopers Wallace and Lewis searched Adams’ vehicle,
Trooper Wallace found a ziplock bag depicted in Exhibit 1 under the front
passenger seat. He opened it and found suspected marihuana. Trooper
Lewis found a black handbag located behind the driver’s seat in between the
driver’s seat and the middle passenger seat. Trooper Lewis handed Trooper
Wallace the black handbag. Trooper Wallace could see another larger bag
of suspected marihuana and a bag containing a white substance suspected of
being cocaine. Both troopers testified at trial that in their opinion, the black
bag behind the driver’s seat was easily accessible to Foster and was actually
easier for her to reach than Adams.
{¶9} Trooper Wallace testified he completed Exhibit 6, the property
control forms. When Trooper Wallace questioned Foster and Adams as to
the ownership of the bags, Foster stated that the bag under the front
passenger seat was hers and Adams claimed the black handbag behind the
driver’s seat. The property control form Trooper Wallace completed
reflected these admissions.
{¶10} On cross-examination, Trooper Wallace clarified that the
property control forms indicated ownership of the bags, not the suspected
Scioto App. No. 21CA3967 5
drugs themselves. He also acknowledged that the vehicle search did not
yield an unusual amount of cash, scales, or baggies―items often found in
conjunction with drug trafficking activities. Trooper Wallace further
acknowledged there was no DNA or fingerprint evidence linking Foster to
the black handbag which ultimately contained both cocaine and marihuana.
{¶11} The jury also viewed Exhibit 7, a CD of Trooper Wallace’s
trooper cam.1 Trooper Wallace testified his cruiser was equipped with audio
and video devices which were functioning properly on November 20, 2020.
A front-facing camera in his cruiser captures a traffic stop. A rear-facing
camera shows the back of Trooper Wallace’s cruiser and any occupants.
Trooper Wallace also wears a “belt mike” to capture audio outside the
vehicle. As the CD was played, Trooper Wallace explained what was
transpiring. During a portion of the video, Adams took Foster’s hand. The
following are excerpts from the CD which, the State argued, support the
State’s claim that Foster knowingly trafficked and possessed cocaine and
marihuana:
Trooper Wallace: Is there any marihuana up there?
1
Exhibit 7 is difficult to hear at times. Before Exhibit 7 was played, the trial court reviewed a proposed
“listening aid,” a transcript of the conversation on Exhibit 7, and ultimately decided to allow it to be
distributed to the jurors. Before it was distributed, the trial court gave an instruction that the listening aid
was being provided only for the purpose of helping the jurors understand the recording. The jurors were
also instructed that if there was a difference or discrepancy between the listening aid and the recording, the
jurors were to rely only on the recording because the recording was the actual evidence. This same
instruction was given the jurors during closing instructions and prior to deliberation.
Scioto App. No. 21CA3967 6
Ms. Adams: In the car?
Trooper Wallace: Yeah.
Ms. Adams: Yea.
***
Trooper Wallace: Okay. Where’s the marihuana in the car?
Ms. Adams: In the bag - - in the - - in the black bag.
***
Ms. Adams: [Speaking to Foster] Okay. He’s going to find what’s
under the seat. * * *
Trooper Wallace: [Speaking to Trooper Lewis] Wonder if that’s the black
bag she was talking about? I think there’s over 200
grams. * * * She said in the black bag. So, I think she’s
taking credit for everything. * * * I wonder if this plastic
bag underneath here is the passenger, if this one’s hers.
***
Ms. Adams: He touched my v-vah-jj and everything.
Ms. Foster: I know. He touched mine too. There goes my job.
{¶12} At this point, Trooper Wallace described how a pat-down
search is performed. He explained that it is performed on camera. There
may be something hidden in a bra or between the legs. With both male and
Scioto App. No. 21CA3967 7
female suspects, officers check between the legs and armpit areas. Officers
also check bra areas. Officers explain to those detained how the pat-down is
going to be performed. The CD continued:
***
Ms. Foster: Oh shit. I need to call Jim Peach. 2
***
Ms. Adams: What I should have done - - what I should have done was
(inaudible).
Ms. Foster: It’s okay. It’s not your fault. We’ll get through it
together. He kept telling us to get out of town. I should
have done it too. * * * He’s going through my purse.
***
Trooper Wallace: Okay. What was found up there, the black bag that you
said in the backseat was yours, correct?
Ms. Adams: Um hmm.
Trooper Wallace: Yes, okay. And what was under your seat, that was
yours?
Ms. Foster: Yes.
2
A Scioto County-based bail bondsman.
Scioto App. No. 21CA3967 8
{¶13} After the State played State’s Exhibit 7, Trooper Wallace
testified that the video from his cruiser dash-cam, both the front-facing and
inside camera, were true and accurate depictions of a copy of what he
witnessed on the evening in question. He testified he marked his audio and
video recording as evidentiary and submitted it to the prosecutor’s office for
review for potential charges. The women were not arrested that night. The
substances confiscated were sent to the Ohio State Highway Patrol crime lab
for testing.
{¶14} Similarly, Trooper Nick Lewis testified that when he
approached Adams’ vehicle he smelled a strong odor of raw marihuana
when he was 10-15 yards away. Trooper Lewis recalled commenting to
another person at the scene, “I guess I’ll be searching that thing.” Trooper
Lewis’s testimony corroborated Trooper Wallace’s regarding the location of
the bags in the Adams vehicle and the substances contained within. On
cross-examination, Trooper Lewis admitted he was wearing a belt-cam
microphone but did not save this evidence of the search because, he
explained, his camera would have shown the same thing as Trooper
Wallace’s.
{¶15} The trial court also admitted the State’s exhibits which included
photographs of the substances confiscated and corresponding lab reports. Of
Scioto App. No. 21CA3967 9
pertinence to this appeal, as discussed above, the trial court admitted State’s
Exhibit 6, a property control/lab submission form and State’s Exhibit 7, a
copy of a cruiser video.
{¶16} After the State presented its case and rested, defense counsel
offered one exhibit, a copy of co-defendant Adams’ waiver and guilty
finding on the two trafficking counts. The defense then rested.
{¶17} At the conclusion of trial, Foster was convicted on all counts of
the indictment. On October 27, 2021, the court conducted Foster’s
sentencing hearing. The court found that the crimes charged in Counts One,
Two, and Four were allied offenses of similar import and therefore should
merge for purposes of sentencing. The sentences on Counts One and Three
were ordered to be served consecutively. Foster was sentenced to a
minimum prison term of seven years with six years being a mandatory
minimum, to an indefinite maximum prison term of up to ten years. This
timely appeal followed. 3
3
Defense counsel attached the October 13, 2021 entry documenting the jury’s findings to the notice of
appeal. Counsel did not attach the November 3, 2021 judgment entry of sentence. Pursuant to App.R. 3(A),
the only jurisdictional requirement for the filing of a valid appeal is the timely filing of a notice of appeal.
When presented with other defects in the notice of appeal, a court of appeals is vested with discretion to
determine whether sanctions, including dismissal, are warranted. See State v. Gray, 4th Dist. Meigs No.
99CA07, 2000 WL 502821 (Apr. 21, 2000), Fn. 1, (Where the State did not object to appeal on
jurisdictional grounds, State was not prejudiced by failure to include a related judgment entry and basis of
appeal was clear, it would be unjust not to consider related judgment entry.) Here, the appellate record
contains a notification that as of November 5, 2021, Foster had perfected the appeal by attaching a copy of
the November 5, 2021 sentencing judgment entry notification.
Scioto App. No. 21CA3967 10
ASSIGNMENTS OF ERROR
I. APPELLANT’S CONVICTIONS ON COUNTS ONE,
TWO, AND THREE SHOULD BE REVERSED
BECAUSE THERE IS INSUFFICIENT EVIDENCE TO
SUPPORT A FINDING OF GUILT BEYOND A
REASONABLE DOUBT.
II. APPELLANT’S CONVICTIONS ON COUNTS ONE,
TWO, AND THREE ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND SHOULD BE
REVERSED.
SUFFICIENCY OF THE EVIDENCE
{¶18} As one of the key elements of Foster’s convictions for
trafficking and possession, the State of Ohio was required to prove beyond a
reasonable doubt that Foster knowingly possessed both the cocaine and
marihuana found in Adams’ vehicle. Under the first assignment of error,
Foster contends that there was no evidence of actual or constructive
possession of the substances. In this case, the following facts are not in
dispute:
1. The women were traveling in Adams’ vehicle and
Adams was driving.
2. Foster was a front seat passenger.
3. Upon search of Adams’ vehicle, troopers found two
separate bags.
4. A ziplock bag was under the front passenger seat
that contained green vegetation later found to be
marihuana. Foster claimed ownership of this bag.
5. A black hand bag was behind the driver’s seat and
it contained a white substance and green vegetation
Scioto App. No. 21CA3967 11
later found to be cocaine and marihuana. Adams
claimed ownership of this bag.
{¶19} Foster has not questioned the training and experience of the
troopers, the lab reports identifying the substances obtained from Adams’
vehicle, the reliability of the chain of custody of the substances at issue, or
the analyst’s credentials and expertise. Thus, resolution of the first
assignment of error turns solely upon the issue of whether or not Foster
jointly possessed the cocaine and marihuana of which Adams claimed
ownership, thus making her complicit in Adams’ trafficking activities.
SUFFICIENCY STANDARD OF REVIEW
{¶20} A claim of insufficient evidence invokes a due process concern
and raises the question whether the evidence is legally sufficient to support
the verdict as a matter of law. See State v. Wickersham, 4th Dist. Meigs No.
13CA10, 2015-Ohio-2756, at ¶ 22; State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the
evidence, our inquiry focuses primarily upon the adequacy of the evidence;
that is, whether the evidence, if believed, reasonably could support a finding
of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of
review is whether, after viewing the probative evidence and inferences
reasonably drawn therefrom in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential elements of the
Scioto App. No. 21CA3967 12
offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574
N.E.2d 492 (1991). Furthermore, a reviewing court is not to assess “whether
the state's evidence is to be believed, but whether, if believed, the evidence
against a defendant would support a conviction.” Thompkins, 78 Ohio St.3d
at 390 (Cook, J., concurring).
{¶21} Thus, when reviewing a sufficiency-of-the-evidence claim, an
appellate court must construe the evidence in a light most favorable to the
prosecution. See Wickersham, supra, at ¶ 23; State v. Hill, 75 Ohio St.3d
195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477,
620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a
sufficiency-of-the-evidence claim unless reasonable minds could not reach
the conclusion that the trier of fact did. See State v. Tibbetts, 92 Ohio St.3d
146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484,
739 N.E.2d 749 (2001).
LEGAL ANALYSIS
{¶22} At the outset, we observe that although the trial court found
Foster guilty of trafficking and possessing cocaine, the trial court merged the
possession offense with the trafficking offense. Thus, if sufficient evidence
supports Foster’s trafficking conviction, an erroneous verdict on the merged
Scioto App. No. 21CA3967 13
count would be harmless. See State v. Whitehead, 4th Dist. Scioto No.
20CA3931, 2022-Ohio-479, at ¶ 78; State v. Worley, 164 Ohio St.3d 589,
2021-Ohio-2207, 174 N.E.3d 754, ¶ 73; State v. Powell, 49 Ohio St.3d 255,
263, 552 N.E.2d 191 (1990); State v. Campbell, 4th Dist. Vinton No.
20CA723, 2021-Ohio-2482, ¶ 46; see also State v. Williams, 4th Dist. Scioto
No. 11CA3408, 2012-Ohio-4693, ¶ 54 (because court does not impose
sentence for merged offenses, defendant is not “convicted” of merged
offenses and no “conviction” for appellate court to vacate). Consequently, if
we determine that sufficient evidence supports Foster’s trafficking in
cocaine conviction, we need not address her sufficiency argument regarding
the possession offense. Yet these issues are interrelated because to sustain
an R.C. 2925.03(A)(2) trafficking conviction as a principal offender, the
state must also prove that the defendant had control over, i.e., possessed, the
illegal substance. State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 181,
2008-Ohio-1625, ¶ 30, quoting R.C. 2925.01(K) (in order to ship, transport,
deliver, distribute, etc., “the offender must ‘hav[e] control over’ ” the illegal
substance); see State v. Floyd, 7th Dist. No. 18 MA 0106, 2019-Ohio-4878,
¶ 21 (R.C. 2925.03(A)(2) requires “possession of the controlled substance,
either constructive or actual”). Sufficient evidence of possession is what
Foster challenges in this appeal.
Scioto App. No. 21CA3967 14
{¶23} R.C. 2925.03(A)(2) contains the essential elements of
trafficking in drugs:
No person shall knowingly
***
(2) Prepare 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.
{¶24} Therefore, in analyzing the sufficiency of the evidence
supporting Foster’s trafficking in cocaine and marihuana convictions, our
primary focus is whether Foster jointly possessed or had control over the
substances that Adams ultimately took responsibility for through her
statements to the troopers and her voluntary plea and convictions.
{¶25} “Possession” is generally defined as “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). See also
Whitehead, supra, at ¶ 88. “Whether a person knowingly possessed a
controlled substance ‘is to be determined from all the attendant facts and
circumstances available.’ ” Id., quoting, State v. Teamer, 82 Ohio St.3d 490,
492, 696 N.E.2d 1049 (1998).
Scioto App. No. 21CA3967 15
{¶26} “Possession * * * may be individual or joint, actual or
constructive.” State v. Wolery, 46 Ohio St.2d 316, 332, 348 N.E.2d 351(1976); State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747, ¶ 39.
“ ‘ “Actual possession exists when the circumstances indicate that an
individual has or had an item within his immediate physical possession.” ’ ”
Whitehead, supra at ¶ 89, quoting State v. Kingsland, 177 Ohio App.3d 655,
2008-Ohio-4148, 895 N.E.2d 633, ¶ 13 (4th Dist.), quoting Fry at ¶ 39.
“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.” State v. Hankerson, 70 Ohio
St.2d 87, 434 N.E.2d 1362 (1982), syllabus; State v. Brown, 4th Dist. Athens
No. 09CA3, 2009-Ohio-5390, ¶ 19. For constructive possession to exist, the
state must show that the defendant was conscious of the object's presence.
Hankerson, 70 Ohio St.2d at 91; Kingsland at ¶ 13; accord State v.
Huckleberry, 4th Dist. Scioto No. 07CA3142, 2008-Ohio-1007, ¶ 34; State
v. Harrington, 4th Dist. Scioto No. 05CA3038, 2006-Ohio-4388, ¶ 15.
{¶27} Both dominion and control, and whether a person was
conscious of the object's presence, may be established through
circumstantial evidence. See Brown at ¶ 19; see also State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus
Scioto App. No. 21CA3967 16
(“[c]ircumstantial evidence and direct evidence inherently possess the same
probative value”). “Circumstantial evidence is defined as ‘[t]estimony not
based on actual personal knowledge or observation of the facts in
controversy, but of other facts from which deductions are drawn, showing
indirectly the facts sought to be proved. * * *’ ” State v. Nicely, 39 Ohio
St.3d 147, 150, 529 N.E.2d 1236 (1988), quoting Black's Law Dictionary (5
Ed.1979) 221.
{¶28} “Furthermore, to establish constructive possession the state
need not show that the defendant had ‘[e]xclusive control’ over the
contraband.” Whitehead, at ¶ 91, quoting State v. Tyler, 8th Dist. Cuyahoga
No. 99402, 2013-Ohio-5242, ¶ 24, citing State v. Howard, 8th Dist.
Cuyahoga No. 85034, 2005-Ohio-4007, ¶ 15, citing In re Farr, 10th Dist.
Franklin No. 93AP-201, 1993 WL 464632, *6 (Nov. 9, 1993) (nothing in
R.C. 2925.11 or 2925.01 “states that illegal drugs must be in the sole or
exclusive possession of the accused at the time of the offense”). Instead, “
‘[a]ll that is required for constructive possession is some measure of
dominion or control over the drugs in question, beyond mere access to
them.’ ” Howard at ¶ 15, quoting Farr at *6. Thus, simply because others
may have access in addition to the defendant does not mean that the
defendant “could not exercise dominion or control over the drugs.” Tyler at
Scioto App. No. 21CA3967 17
¶ 24; accord State v. Walker, 10th Dist. Franklin No. 14AP-905, 2016-Ohio-
3185, ¶ 75. We further note that multiple persons may have joint
constructive possession of an object. See State v. Philpott, 8th Dist.
Cuyahoga Nos. 109173, 109174, and 109175, 2020-Ohio-5267, ¶ 67;
Wolery, 46 Ohio St.2d at 332, 329 (“[p]ossession * * * may be individual or
joint” and “control or dominion may be achieved through the instrumentality
of another”).
{¶29} Based on our review of the evidence presented to the jurors, we
find there was sufficient evidence for any rational trier of fact to find beyond
a reasonable doubt that Foster knowingly possessed the contents of the black
handbag of which Adams’ also claimed ownership. Both officers testified
that Adams’ black handbag was readily accessible to Foster. It is arguable
that Foster actually possessed the drugs because they were within her
immediate physical possession. See Whitehead, supra, at ¶ 89.
{¶30} Moreover, the circumstantial evidence demonstrates that Foster
constructively possessed the drugs. What we find telling is Adams’
comment to Foster “He’s going to find what’s under the seat.” Adams had
already admitted to Trooper Wallace, in Foster’s presence, that there was
marihuana in the vehicle. This comment to Foster indicates Foster’s
knowledge that there was also cocaine in the vehicle. Foster was conscious
Scioto App. No. 21CA3967 18
of the presence of the drugs. Whitehead, supra, at ¶ 89, (internal citations
omitted.) Exhibit 7 clearly shows Adams turn her head to Foster when she
made this statement, and this statement is not difficult to hear on the
recording. Foster does not express any surprise or denial when Adams
makes this statement to her. Thus, this circumstantial evidence may be
construed as demonstrating Foster’s constructive possession of the cocaine.
{¶31} Based on our review, we believe that when viewed in a light
most favorable to the prosecution, the evidence demonstrates that Foster was
more than an innocent bystander to the offenses, but instead, establishes that
she aided and abetted the principal offender to commit the offenses of
trafficking in cocaine and trafficking in marihuana. R.C. 2923.03(A)(2),
Ohio's complicity statute provides, in relevant part, that “[n]o person, acting
with the kind of culpability required for the commission of an offense, shall
* * * [a]id or abet another in committing the offense.” “[T]o aid or abet is
‘ “[t]o assist or facilitate the commission of a crime, or to promote its
accomplishment.” ’ ” State v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-
3343, 164 N.E.3d 316, ¶ 27, quoting State v. Johnson, 93 Ohio St.3d
240,243, 754 N.E.2d 796 (2001), quoting Black's Law Dictionary 69 (7th
Ed.1999).
Scioto App. No. 21CA3967 19
{¶32} “A conviction for complicity by aiding and abetting under R.C.
2923.03(A)(2) requires the state to prove, beyond a reasonable doubt, ‘that
the defendant supported, assisted, encouraged, cooperated with, advised, or
incited the principal in the commission of the crime, and that the defendant
shared the criminal intent of the principal.’ ” Whitehead, supra, at ¶ 81,
quoting Johnson at syllabus. “ ‘Participation in criminal intent may be
inferred from presence, companionship and conduct before and after the
offense is committed.’ ” Id. at 245, quoting State v. Pruett, 28 Ohio App.2d
29, 34, 273 N.E.2d 884 (4th Dist.1971). However, “ ‘the mere presence of
an accused at the scene of a crime is not sufficient to prove, in and of itself,
that the accused was an aider and abettor.’ ” Id. at 243, quoting State v.
Widner, 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). “This rule is to
protect innocent bystanders who have no connection to the crime other than
simply being present at the time of its commission.” Id.{¶33} We further observe that the complicity statute does not require
the state to charge the defendant with complicity. See Whitehead, supra, at
¶ 82. Instead, R.C. 2923.03(F) allows the state to charge the defendant as a
principal offender. The statute provides that “[a] charge of complicity may
be stated in terms of [the complicity statute], or in terms of the principal
offense.” Id. In this case, the state charged Foster in terms of the principal
Scioto App. No. 21CA3967 20
offense. At trial, the state asserted that Foster also is guilty as an aider and
abettor, and the trial court gave the jury complicity instructions.
{¶34} As we noted above, a complicity conviction requires the state
to prove “that the defendant supported, assisted, encouraged, cooperated
with, advised, or incited the principal in the commission of the crime, and
that the defendant shared the criminal intent of the principal.” Johnson at
syllabus. R.C. 2925.03(A)(2) requires that the offender act knowingly in
committing the offense. A complicity to trafficking in drugs conviction,
therefore, requires the state to demonstrate that the defendant knowingly
“supported, assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime.” Johnson at syllabus.
{¶35} R.C. 2901.22(B) defines when a person acts knowingly:
A person acts knowingly, regardless of purpose, when the
person is aware that the person's conduct will probably
cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when a
person is aware that such circumstances probably exist.
When knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if a
person subjectively believes that there is a high probability
of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
{¶36} We observe that “ ‘[t]he intent of an accused person dwells in
his mind’ ” and that intent “ ‘can never be proved by the direct testimony of
a third person.’ ” State v. Johnson, 56 Ohio St.2d 35, 38, 381 N.E.2d 637Scioto App. No. 21CA3967 21
(1978), quoting State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313 (1936),
paragraph four of the syllabus. Instead, intent “ ‘must be gathered from the
surrounding facts and circumstances under proper instructions from the
court.’ ” Id., quoting Huffman, paragraph four of the syllabus; e.g., State v.
Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 143; State
v. Garner, 74 Ohio St.3d 49, 60, 656 N.E.2d 623, 634 (1995). We further
observe that “[i]ntention is a question of fact, and not one of law.” Koenig v.
State, 121 Ohio St. 147, 151, 167 N.E. 385 (1929); State v. Wamsley, 6th
Dist. Butler No. CA2002-05-109, 2003-Ohio-1872, ¶ 18.
{¶37} Based on our review, we believe that when viewed in a light
most favorable to the prosecution, the evidence shows that Foster was
complicit in trafficking in cocaine and marihuana. Because we believe a
rational trier of fact could have found beyond a reasonable doubt that Foster
knowingly aided and abetted the principal offender in committing the
offense of trafficking in cocaine and marihuana, the record contains
sufficient evidence to support Foster’s trafficking in cocaine and marihuana
convictions. Like the State, we believe that the co-defendants’ conduct and
conversation in the back seat of the cruiser supports the conclusion that
Foster supported, assisted, encouraged, and cooperated in Adams’
trafficking cocaine and marihuana. As the evidence demonstrated, Adams
Scioto App. No. 21CA3967 22
took Foster’s hand in the back seat of the cruiser, as if to bolster or support
her during the officer’s investigation. Foster commented “There goes my
job”; “Get in contact with Jim Peach”; “we should have left.” These
comments indicate Foster believed she was going to be in legal trouble
because of the substances discovered in the search. “We’ll get through this
together” also indicates Foster’s support for Adams and Foster’s belief that
she was going to be in legal trouble along with Adams.
{¶38} We also interpret Foster’s actions and comments as indicating
an air of resignation. During the investigation and during Adams’
statements to officers, Foster’s body language is indicative. She hangs her
head and shoulders at times, stares distantly at times, and makes no protest
when Adams whispers “He’s going to find what’s under the seat.” Instead
of acting with shock or surprise that the vehicle was being searched and
substances including cocaine would be discovered, Foster’s comments
indicate she is anticipating the future, planning her strategy, and regretting
her participation in trafficking. Foster indicates she needs to get in touch
with a bail bondsman. She anticipates losing her employment. She
ruminates that she had not “gotten out of town” as had been suggested by
someone apparently familiar with her activities. Furthermore, because the
record contains sufficient evidence to support Foster’s complicity to
Scioto App. No. 21CA3967 23
trafficking, we need not consider whether the record also contains sufficient
evidence to show Foster’s guilt as a principal offender.
{¶39} For the foregoing reasons, we find no merit to Foster’s first
assignment of error. We find the element of possession is supported by
sufficient evidence. We further find her convictions in Counts One, Two,
and Three are supported by sufficient evidence. Accordingly, the first
assignment of error is overruled.
MANIFEST WEIGHT OF THE EVIDENCE
STANDARD OF REVIEW
{¶40} Under the second assignment of error, Foster again
contends that there was no indicia of ownership or forensic evidence to
suggest that she had knowledge of the contents in Adams’ bag, or that she
exercised dominion or control over the contents. Furthermore, she contends
that no evidence was presented to demonstrate complicity in Adams’
activities. Therefore, Foster concludes that her convictions are against the
manifest weight of the evidence.
{¶41} “We observe that the ‘question to be answered when a
manifest-weight issue is raised is whether “there is substantial evidence
upon which a jury could reasonably conclude that all the elements have been
proved beyond a reasonable doubt.” ’ ” Whitehead, supra, at ¶ 101, quoting
Scioto App. No. 21CA3967 24
State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229,
¶ 81, in turn quoting State v. Getsy, 84 Ohio St.3d 180, 193-194, 702 N.E.2d
866 (1998), citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978),
syllabus. A court that is considering a manifest-weight challenge must
“ ‘review the entire record, weigh the evidence and all reasonable inferences,
and consider the credibility of witnesses.’ ” State v. Beasley, 153 Ohio St.3d
497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 208, quoting State v. McKelton,
148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328; accord State v.
Hundley, 162 Ohio St.3d 509, 2020-Ohio-3775, 166 N.E.3d 1066, ¶ 80. The
reviewing court must bear in mind, however, that credibility generally is an
issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752
N.E.2d 904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008-
Ohio-1744, ¶ 31. “ ‘Because the trier of fact sees and hears the witnesses
and is particularly competent to decide “whether, and to what extent, to
credit the testimony of particular witnesses,” we must afford substantial
deference to its determinations of credibility.’ ” Barberton v. Jenney, 126
Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20, quoting State v.
Konya, 2nd Dist. Montgomery No. 21434, 2006-Ohio-6312, ¶ 6, quoting
State v. Lawson, 2nd Dist. Montgomery No. 16288, 1997 WL 476684, *4
Scioto App. No. 21CA3967 25
(Aug. 22, 1997). As the court in Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, 972 N.E.2d 517, ¶21, explained:
“ ‘[I]n determining whether the judgment below is
manifestly against the weight of the evidence, every
reasonable intendment and every reasonable presumption
must be made in favor of the judgment and the finding of
facts. * * *
If the evidence is susceptible of more than one
construction, the reviewing court is bound to give it that
interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and
judgment.’ ”
Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence
3d, Appellate Review, Section 60, at 191-192 (1978).
{¶42} Thus, an appellate court will leave the issues of weight and
credibility of the evidence to the fact finder, as long as a rational basis exists
in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No.
11CA9, 2012-Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No.
07CA2948, 2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier
of fact has some factual and rational basis for its determination of credibility
and weight.”).
{¶43} Accordingly, if the prosecution presented substantial credible
evidence upon which the trier of fact reasonably could conclude, beyond a
reasonable doubt, that the essential elements of the offense had been
Scioto App. No. 21CA3967 26
established, the judgment of conviction is not against the manifest weight of
the evidence. See Whitehead, at ¶ 102; see also Eley; accord Eastley at ¶ 12,
quoting Thompkins, 78 Ohio St.3d at 387, quoting Black's Law Dictionary
1594 (6th ed.1990) (explaining that a judgment is not against the manifest
weight of the evidence when “ ‘ “the greater amount of credible
evidence” ’ ” supports it). A court may reverse a judgment of conviction
only if it appears that the fact finder, when it resolved the conflicts in
evidence, “ ‘clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.’ ”
Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983); accord McKelton at ¶ 328. A
reviewing court should find a conviction against the manifest weight of the
evidence only in the “ ‘exceptional case in which the evidence weighs
heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, quoting
Martin, 20 Ohio App.3d at 175; accord State v. Clinton, 153 Ohio St.3d 422,
2017-Ohio-9423, 108 N.E.3d 1, ¶ 166; State v. Lindsey, 87 Ohio St.3d 479,
483, 721 N.E.2d 995 (2000).
LEGAL ANALYSIS
{¶44} In this case, we do not believe that the evidence weighs heavily
against Foster’s convictions for complicity to trafficking in cocaine and
Scioto App. No. 21CA3967 27
marihuana and possession of cocaine. As we explained in Foster’s previous
assignment of error, the State presented ample circumstantial evidence to
show that Foster actually and constructively possessed the drugs at issue and
that she aided or abetted Adams in committing the trafficking offenses. The
jurors were in the best position to review the evidence presented. The jury
obviously credited the state's theory of the case that Foster acted in concert
with Adams to transport the drugs. After our review, we are unable to
conclude that the jury committed a manifest miscarriage of justice by
convicting appellant.
{¶45} For the foregoing reasons, we find no merit to Foster’s second
assignment of error and it is hereby overruled.
JUDGMENT AFFIRMED.
Scioto App. No. 21CA3967 28
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed 60 days upon the bail previously posted. The purpose of a continued
stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the
expiration of the 60-day period, or the failure of the Appellant to file a notice
of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of
Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior
to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J. concur in Judgment and Opinion.
For the Court,
__________________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.