State v. Smith ( 2024 )

[Cite as State v. Smith, 2024-Ohio-1473.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113035
v. :
GWENETTA SMITH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND VACATED
RELEASED AND JOURNALIZED: April 18, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-677865-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anjali Kanwar, Assistant Prosecuting
Attorney, for appellee.
Jones Day and Joseph Shell, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Gwenetta Smith (“Ms. Smith”) appeals judgments
from the trial court, rendered after a bench trial, finding her guilty of drug
possession in violation of R.C. 2925.11(A) and possession of criminal tools in
violation of R.C. 2923.24(A). For the reasons that follow, we reverse the judgment
of the trial court and vacate the convictions.
FACTUAL AND PROCEDURAL HISTORY
Ms. Smith, who is married to Frederick Johnson (“Johnson”), resided
at a home on Eastwood Boulevard in Garfield Heights, Ohio, with their children. 1
On November 24, 2020, law enforcement executed a search warrant at their
residence at around 6:00 a.m. The basis for the search was a wiretap implicating
two individuals unrelated to Ms. Smith. The individuals, Myron Smith and Larry
Lawson, were heard by law enforcement discussing various aspects of drug
transactions.2 Detectives believed that a vehicle registered to Ms. Smith was
observed being driven by Myron Smith during one of these drug transactions.
Because the vehicle was registered at the Eastwood address, law enforcement
obtained a warrant to search Ms. Smith and Johnson’s home.
Both Ms. Smith and Johnson were present and detained in the living
room while law enforcement executed the search. The search warrant covered a
search of the residence only. However, while law enforcement searched the
1 Neither Johnson nor Ms. Smith testified at trial.
Defense counsel acknowledged
that Smith and Johnson were married, but had different last names. (Tr. 9.)
2 The South East Area Law Enforcement (“S.E.A.L.E.”) intercepted conversations
between two other individuals, Myron Smith (no relation to Ms. Smith) and Larry
Lawson. (Trial tr. 113:16–115:1.) Neither lived at the subject residence. Police observed
Myron Smith drive a red Durango (Trial tr. 138:19–23), registered to Ms. Smith, at her
father’s Felch Street address, not where S.E.A.L.E. raided. (Trial tr. 69:19-23, 138:23–
139:1, 165:6–7.)
residence, officers physically searched Johnson and discovered approximately
$2,158 in cash on his person.
Ms. Smith was indicted on January 20, 2023, for drug trafficking in
violation of R.C. 2925.03(A)(2) (Count 1), drug possession in violation of R.C.
2925.11(A) (Count 2), and possessing criminal tools under R.C. 2923.24(A)
(Count 3), all with forfeiture specifications. The charges stemmed from the fruits of
a search warrant executed on November 24, 2020. There was no evidence that Ms.
Smith was observed in possession of illegal drugs nor evidence of Ms. Smith’s
presence during surveillance of any controlled buys involving the Durango.
Additionally, the search warrant did not name Ms. Smith nor Johnson as subjects of
surveillance.
Q. So we’re talking about a Durango, and tell me what, if anything, did
you observe or were you aware of anything Ms. Smith did in
furtherance of a drug conspiracy that was alleged in Federal court?
A. That I don’t know. I wasn’t involved in —
Q. She was not a target, was she?
A. No. I don’t believe she was charged in Federal court.
Law enforcement did not arrest Ms. Smith at the conclusion of the
search, nor did they remove marijuana containers that they believed contained legal
marijuana (Tr. 48). Ms. Smith was indicted approximately three years later. She
pleaded not guilty, and the matter was scheduled for trial. During plea negotiations,
Ms. Smith was offered intervention in lieu of conviction (“I.L.C.”), which would have
held the convictions of all three counts in abeyance pending Ms. Smith’s successful
completion of I.L.C. conditions.3 Ms. Smith declined the plea offer and waived a
jury trial. The bench trial commenced on May 24, 2023.
The trial court subsequently found Ms. Smith not guilty of Count 1 but
guilty of Count 2, drug possession, and Count 3, possession of criminal tools; both
felonies of the fifth degree. Ms. Smith was sentenced to 12 months of community
control supervision. On July 28, 2023, Ms. Smith timely filed a notice of appeal and
raised the following assignments of error:
Assignment of Error 1
The trial court erred in denying Ms. Smith’s motion for a judgment of
acquittal under Crim. R. 29 regarding counts 2 and 3, because the state
failed to offer sufficient evidence to support convictions of drug
possession or possession of criminal tools.
Assignment of Error 2
The trial court’s findings of guilt on counts 2 and 3 were against the
manifest weight of the evidence.
Law and Analysis
In her first assignment of error, Ms. Smith argues the state failed to
present evidence sufficient to support convictions of drug possession or possession
of criminal tools.
Under Crim.R. 29(A), a trial court must enter a judgment of acquittal
of an offense if the evidence is insufficient to sustain a conviction of such offense.
State v. Tyler, 8th Dist. Cuyahoga No. 99402, 2013-Ohio-5242, ¶ 12.
3 Ms. Smith’s compliance with I.L.C. conditions would have resulted in the
dismissal of the convictions after 12 months.
A challenge to the sufficiency of evidence is a question of law reviewed
de novo. State v. Taylor, 8th Dist. Cuyahoga No. 111694, 2023-Ohio-928, ¶ 47. An
appellate court must determine whether, after reviewing the trial evidence in the
light most favorable to the state, a rational trier of fact could find the essential
elements of the crime are proven beyond a reasonable doubt. State v. Leonard, 104
Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, citing State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991). The reviewing court must reverse a conviction if
it concludes that the state has failed to meet its burden of production at trial. State
v. Johnson, 8th Dist. Cuyahoga No. 98245, 2013-Ohio-575, ¶ 37; State v. Hunter,
8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78
Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
On the other hand, a manifest weight challenge considers whether
the prosecution has met its burden of persuasion. State v. Thomas, 70 Ohio St.2d
79, 80, 434 N.E.2d 1356 (1982). The reviewing court must reverse the conviction
and order a new trial in those exceptional cases if, after thoroughly reviewing the
entire record, weighing the evidence and all reasonable inferences, considering the
credibility of witnesses, and determining whether, in resolving conflicts in the
evidence, the trier of fact clearly lost their way and created a manifest miscarriage of
justice. State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 168,
citing Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983).
Ms. Smith was convicted of drug possession and possession of
criminal tools. A conviction of drug possession under R.C. 2925.11(A) requires the
state to prove that the person knowingly obtained, possessed, or used a controlled
substance or a controlled substance analog.
A conviction of possession of criminal tools under R.C. 2923.24(A)
requires a person to possess or have control of any substance, device, instrument, or
article with the purpose of using it criminally. The state must prove possession or
control of the device with intent to use it criminally. State v. Oliver, 31 Ohio App.3d
100, 104, 508 N.E.2d 1048 (11th Dist.1987); R.C. 2923.24; State v. Richardson, 8th
Dist. Cuyahoga No. 71626, 1997 Ohio App. LEXIS 5101 (Nov. 13, 1997). Actual
possession denotes ownership or direct physical control. In contrast, constructive
possession occurs when an individual knowingly exercises dominion and control
over an object despite it not being immediately within the individual’s
possession. See State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982).
It is well settled that possession may be either constructive or actual.
State v. Natale, 8th Dist. Cuyahoga No. 95278, 2011-Ohio-3974, ¶ 12. Both
constructive knowledge and possession may be established solely through
circumstantial evidence. State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d 787 (1971);
State v. Trembly, 37 Ohio App.3d 134, 738 N.E.2d 93 (8th Dist.2000); Natale at
¶ 12. However, “constructive possession may not be inferred solely from mere access
to the thing or substance through ownership or occupation of the premises upon
which the thing or substance is found.” R.C. 2925.01(K). See State v. Shary, 8th
Dist. Cuyahoga No. 109487, 2021-Ohio-3604, ¶ 45 (“Knowledge of an illegal object
on one’s property is sufficient to show constructive knowledge as long as the person
is conscious of the object’s presence.”) Id. ¶ 46. “A person has knowledge of
circumstances when he is aware that such circumstances probably exist.” Tyler,
2013-Ohio-5242, at ¶ 15; R.C. 2901.22(B).
As a preliminary matter, we note that marijuana and suspected
criminal tools were found in two primary locations within the residence during the
execution of the search warrant. The first main search area included the bedrooms,
living room, kitchen, and Johnson’s person (collectively “upstairs”). The upstairs
search resulted in the discovery of the following: a marijuana bag4 from a legal
dispensary, a scale, food storage bags, a legal dispensary container used for
marijuana packaging, and a gun in a top cabinet in the kitchen.5 A gun, ammunition,
and food saver bags were located in a bedroom; and in the living room, detectives
discovered $2,158 on Johnson’s person, two cell phones, and miscellaneous cards.
4 Johnson possessed a valid medical marijuana license. There is no evidence
identifying the quantity of suspected marijuana in the bag found upstairs and the
marijuana found in the basement.
5 There were inconsistencies regarding the evidence found upstairs. During closing
arguments and in its brief, the state indicated the gun was discovered “in a cabinet in the
kitchen, sitting on top of a box.” (Tr. 151.) However, the inventory list, marked state’s
exhibit No. 32, indicated that the firearm was located in the “SE bedroom.” Furthermore,
the inventory states that a scale was found in the kitchen and in the basement. However,
the photos, testimony and exhibits identified only one scale, found in the basement.
The second area where contraband was discovered was in a “barber’s
station” set up in the basement.6 During the search of the “barber’s station” area,
detectives discovered a duffle bag containing two gallon-sized Ziploc bags of
marijuana. (State’s exhibit No. 18, tr. 40.)
Law enforcement also located a scale, guns, a measuring cup, a
vacuum sealer, $5,000 cash, and paperwork belonging to Johnson. Detective Griffis
was unsure where the bag labeled “Terrasana,”7 a legal dispensary, containing
suspected marijuana, was actually found. (State’s exhibit No. 20, tr. 40.)
Question: Exhibit 20?
Answer: It’s another picture of I believe the Terrasana bag. It’s very
common with ─ I believe it’s a marijuana dispensary. I believe it
contained marijuana. I believe that was in the kitchen, I’m not a
hundred percent sure though.
(Tr. 40.)
Johnson held a medical marijuana license, which permitted him to
possess legal marijuana for individual use. Although some marijuana was found
upstairs, a large quantity of marijuana was found in a bag in the basement.
Therefore, the two issues in this case are whether there is evidence that Ms. Smith
had knowledge that the drugs and suspected criminal tools found upstairs were
6 The basement consisted of two separate sections: a barber shop section where
Johnson worked and a laundry section that housed a sink, clothes washer, and dryer.
7 There was testimony that detectives found a plastic jar that contained 2.83 grams
of marijuana from Terrasana Dispensary during the search. (Tr. 77-78.)
illegal and whether there was sufficient evidence that Ms. Smith had knowledge of
the illegal drugs and contraband discovered in the “barber section” in the basement.
Ms. Smith argues that there was insufficient evidence to support her
convictions because she was not near illegal controlled substances when the search
was executed; Johnson possessed a license to purchase marijuana legally; and there
was no evidence that Ms. Smith knew that the drugs found upstairs were not legal.
Furthermore, Ms. Smith alleges the state offered no evidence associating her with
illegal drugs.
Regarding the drugs and criminal tools found in the basement, Ms.
Smith argues that there was insufficient evidence that she had knowledge of the
drugs and contraband in the basement. Additionally, Ms. Smith claims there was
no evidence that she could exercise dominion or control over the evidence found in
plain view in Johnson’s “barber section” of the basement or the black duffle bag that
contained the largest quantity of marijuana. Ms. Smith offers State v. Slade in
support of her claim that the state offered insufficient evidence that she knew there
were illegal drugs and criminal tools in the home or that she could exercise dominion
or control over them. State v. Slade, 145 Ohio App.3d 241, 243-244, 762 N.E.2d 451(8th Dist.2001).
In Slade, we reversed the trial court after a careful review of the facts
and surrounding circumstances revealed that there was insufficient evidence of
constructive possession. Law enforcement observed a drug transaction at the home
Slade shared with her boyfriend. Slade was not home when detectives observed a
“controlled buy” at the residence. After executing a search warrant, law enforcement
found drugs under a desk in an office in the home. There was no evidence of Slade’s
personal property in the office or that she had been seen with the bag containing the
drugs, and her mere presence in the home was insufficient to support a conviction
for constructive possession of drugs.
The state points to the following circumstantial evidence as sufficient
to demonstrate Ms. Smith constructively possessed a controlled substance and
criminal tools: 1) Ms. Smith’s status as an owner of the residence and a household
member; 2) her proximity to contraband that was in plain view; and 3) Mr. Smith’s
intimate relationship with Johnson. The state offers two cases to support its
argument that constructive possession of controlled substances is properly imputed
to Ms. Smith.
First, the state relies on State v. Paige, which held that the discovery
of readily accessible drugs in proximity to an individual was sufficient circumstantial
evidence that the individual was in constructive possession of the drugs. State v.
Paige, 8th Dist. Cuyahoga No. 97939, 2012-Ohio-5727, ¶ 13, citing State v.
Pavlick, 8th Dist. Cuyahoga No. 81925, 2003-Ohio-6632, ¶ 17.
Additionally, the state cited State v. Richardson to support its
argument that Ms. Smith’s intimate relationship with Johnson was circumstantial
evidence of her knowledge of illegal drugs found during the search. In Richardson,
we determined there was sufficient evidence to establish constructive possession
because of the appellant’s intimate relationship with a target of the investigation;
readily usable cocaine and paraphernalia were found in plain view all over the
residence; and the appellant’s proximity to the illegal drugs and contraband during
the search. Richardson, 8th Dist. Cuyahoga No. 71626, at 11. However, we find the
facts and circumstances in the current case inapposite.
The record before us fails to demonstrate that there were readily
usable, illegal drugs or criminal tools found in plain view. Furthermore, the state’s
reliance on Richardson to infer constructive possession based on Ms. Smith’s
relationship with Johnson is unsubstantiated. In Richardson, it was undisputed
that the appellant was dating the target of the investigation. However, in this case,
the state’s assertion that Ms. Smith was intimately involved with an individual target
of the investigation is not supported by the record. The targeted individuals were
Myron Smith and Larry Lawson, not Johnson.
Moreover, Ms. Smith’s mere presence was the only association
between her and the marijuana and criminal tools found in the home.
Question: Is there any evidence whatsoever beyond the fact that there
was marijuana — not plural. This is not drugs. Marijuana. Is there any
evidence that you are aware of that associates Ms. Smith in any way
with the marijuana?
Detective Stanton: Other than the — no, there’s no other — nothing I’m
aware of that associates her with the marijuana, other than her
presence. Yes, that’s it.
(Tr. 130, 13:20.)
While Ms. Smith was present during the search of the home, she was
not present during surveillance of a controlled buy, involving the Durango.
Detective Stanton testified that he was aware of no evidence that Ms. Smith violated
any relevant laws.
Question: At any time, other than a listing of a vehicle, I think a Dodge
Durango, a listing, a registration to Smith, was — is there — are you
aware of any evidence that Ms. Smith violated any relevant laws?
Detective Stanton: No.
(Tr. 129, 16:20.)
Similarly, the state’s argument that the record supports Ms. Smith’s
conviction of possession of criminal tools is unpersuasive. The state argued in its
brief:
Appellant had full access and control of the entire premises. Moreover,
detective testimony also revealed that the marijuana and criminal tools
were out in the open, in plain view.
(State’s Brief 11.)
Detectives testified that two cell phones, food storage materials, guns,
ammunition, scales, and money discovered on Johnson’s person were intended to
be used for a criminal purpose. Because of the ubiquitous nature of cell phones,
possession of two cell phones, without more, fails to prove Ms. Smith used or
intended to use the phones for a criminal purpose. Smith and Johnson were
detained in the living room during the search. We cannot say that any reasonable
person could find that two cell phones being in the proximity of two individuals
temporarily detained by law enforcement is alone sufficient evidence of a criminal
purpose. Speculative evidence is not sufficient to establish that the accused had
possession of the controlled substances. There is no evidence in the record that
Smith intended to use the phones or “miscellaneous cards”8 for an illegal purpose.
Similarly, there was no evidence that Ms. Smith was aware of the money discovered
during the search of Johnson’s person or that he secured the money by illegal means.
The state asks this court to infer that Ms. Smith had knowledge of the
illegal marijuana and suspected criminal tools found upstairs merely because she
lived in and owned the residence. However, R.C. 2925.11 explicitly excludes mere
proximity to the drugs or ownership of the residence as a sole basis for establishing
constructive possession of controlled substances. “Constructive possession is the
determination that the defendant had knowledge of the item purportedly
possessed.” See State v. Alexander, 8th Dist. Cuyahoga No. 90509, 2009-Ohio-597,
¶ 24; State v. Voll, 3d Dist. Union No. 14-12-04, 2012-Ohio-3900, ¶ 19.
The state conceded that Johnson held a patient’s medical marijuana
license before the search warrant was executed. (Defense Ex. E). The kitchen
cabinet where the bag was found contained paperwork belonging only to Johnson.
After reviewing the evidence found upstairs, in a light most favorable to the state,
we could reasonably infer that Ms. Smith knew that there was marijuana in the
kitchen. Notably, given Johnson’s marijuana license, there is no evidence that the
marijuana found in the kitchen was illegal, nor does the record support an inference
that Ms. Smith knew it was illegal. In fact, both Detectives Griffis and Stanton
testified that the package branding, Terrasana, is a legal marijuana dispensary
8 The record does not provide details regarding the nature of the miscellaneous
cards.
located in Cuyahoga County. Moreover, there is no evidence of the quantity of
marijuana found upstairs, that it exceeded a quantity permissible for personal use,
or that it came from anywhere other than Terrasana.
The state essentially asks this court to infer knowledge of illegal
marijuana found in plain view when a household member is legally prescribed the
drug based on their ownership of the residence. We note that there are many law-
abiding citizens who store legal prescription medications that also happen to be
controlled substances in homes they share with others. “Criminal convictions
cannot rest upon mere speculation; the state must establish the guilt of the accused
by proof beyond a reasonable doubt.” State v. Smith, 39 Ohio App.2d 190, 196, 316
N.E.2d 902 (1st Dist.1974).
Moreover, appellate courts have long exercised caution when
inferring constructive possession of controlled substances found in shared
premises. See State v. Pumpelly, 77 Ohio App.3d 470, 602 N.E.2d 714 (12th
Dist.1991); State v. Swalley, 11th Dist. Ashtabula No. 2010-A-0008, 2011-Ohio-
2092, ¶ 61. In the present case, there is no evidence that Ms. Smith had knowledge,
constructive or actual, that the controlled substances found upstairs were illegal or
that any of the suspected criminal tools were intended for a criminal purpose.
The remaining controlled substances and suspected criminal tools
were found in the basement. The state argues in its brief that there was nothing
separating the two sides of the basement. (State’s Brief 11.) However, this claim is
not supported by the record. The basement consisted of two separate sides. One
side contained a laundry area with a clothes washer, dryer, and sink. The other side
housed a “barber’s section area.” The record reveals that Johnson was a barber and
that he used the barbershop area. The state offered circumstantial evidence that the
bag containing illegal quantities of marijuana belonged to him. There was mail
bearing only Johnson’s name in the duffle bag and no evidence that Ms. Smith had
ready access to the barbershop area. There was no evidence that she had ever been
in the barber’s station area of the basement. Consequently, we find Ms. Smith’s
argument persuasive.
After careful consideration of the entire record and surrounding facts
and circumstances, we find that the state failed to offer sufficient evidence that Ms.
Smith knew there was illegal marijuana or criminal tools in the residence. (State’s
exhibit No. 22.)
When weighing the evidence in a light most favorable to the state,
reasonable minds could not find, beyond a reasonable doubt, Ms. Smith guilty of
each element of possession of illegal drugs or criminal tools. Accordingly, Ms.
Smith’s first assignment of error is sustained.
We find that Ms. Smith’s first assignment of error is dispositive;
therefore, her second assignment of error is moot, and we decline to address it.
Judgment is reversed. Ms. Smith’s convictions of possession of drugs
in Count 2 and possession of criminal tools in Count 3 are vacated.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
EILEEN A. GALLAGHER, P.J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)
EILEEN T. GALLAGHER, J., DISSENTING:
I respectfully dissent from the majority’s determination that there is
insufficient evidence to support Smith’s convictions for drug possession and
possession of criminal tools.
The majority concludes “[t]he record before us fails to demonstrate
that there were readily usable, illegal drugs or criminal tools in plain view.”
However, the investigative officers who conducted the search found marijuana,
packaging materials, and a scale in plain view on a counter in the kitchen, a common
area of the house. (See state’s exhibit Nos. 22 and 32, tr. 47 and 91.) They also found
a large quantity of marijuana, packaging materials, a scale, cash, firearms, and
ammunition in the basement. (See state’s exhibit No. 32, tr. 38.) Therefore, there
is undeniable evidence that there were drugs and criminal tools in plain view
throughout the house at the time of the search at which Smith was present.
The majority nevertheless maintains there is no evidence that Smith
knew the drugs were illegal because Johnson had a medical marijuana license.
However, Officer Michael Griffis (“Officer Griffis”), the Solon police officer assigned
to the S.E.A.L.E. Narcotics Task Force who participated in the execution of the
search warrant, identified the packaging material found in the house as Shield N
Seal, a food saver type bag “commonly used for the packaging of marijuana.” (Tr.
41.) A photograph shows Shield N Seal bagging material next to a bag of marijuana
on the counter in the kitchen. (See state’s exhibit No. 22.) These are not items that
a medical-marijuana patient uses for treatment purposes; they are evidence of drug
trafficking. Indeed, Officer Griffis testified that there was marijuana throughout the
home in amounts “far more than personal use” and that, under those circumstances,
Smith “would be well aware of what was going on.” (Tr. 70-71.)
Furthermore, police determined, prior to the search, that a red Dodge
Durango was involved in suspected drug trafficking. (Tr. 132.) The Durango was
registered to Smith. (Tr. 132.) While conducting surveillance, police repeatedly
observed the Durango at the Eastwood address. (Tr. 131-132.) That the Durango
was used in drug trafficking, by itself, does not conclusively establish that Smith was
aware of the drug activity. However, the use of Smith’s vehicle in drug activity and
its consistent presence at the house provides additional circumstantial evidence that
she was aware of the activity, and the fact that neither she nor Johnson were the
original targets of the investigation is irrelevant to that issue.
In sum, the police found drugs, firearms, cash, and drug
paraphernalia in plain view throughout the Eastwood home. The quantity of drugs
was more than one would possess for personal or medicinal use, and the drugs were
found with packaging materials typically used for drug trafficking. Police repeatedly
observed a vehicle, registered to Smith, that was involved in suspected drug activity
at the Eastwood address. Therefore, I would find there is sufficient evidence in the
record to support Smith’s convictions. And because the evidence is competent and
credible and no contradictory evidence was presented, I would also find that the
convictions are not against the manifest weight of the evidence.