State v. Crumpton , 2024 Ohio 5064 ( 2024 )

[Cite as State v. Crumpton, 2024-Ohio-5064.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
State of Ohio, : Case No. 23CA4024
Plaintiff-Appellee, : DECISION AND
JUDGMENT ENTRY
v. :
Isreal L. Crumpton, :
Defendant-Appellant. : RELEASED 10/18/2024
______________________________________________________________________
APPEARANCES:
Mallorie Thomas, Assistant State Public Defender, Office of the Ohio Public Defender,
Columbus, Ohio, for appellant.
Shane A. Tieman, Prosecuting Attorney, and Jay Willis, Assistant Prosecuting Attorney,
Portsmouth, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Isreal L. Crumpton appeals from a judgment of the Scioto County Court of
Common Pleas convicting him, following a jury trial, of drug-related offenses and
possessing criminal tools. He presents three assignments of error asserting: (1) the trial
court committed plain error when it accepted a non-unanimous written jury verdict on
Count Two; (2) the court erred in denying his motion to dismiss; and (3) the State failed
to introduce sufficient evidence to support his conviction for drugs recovered by a rental
vehicle company. For the reasons which follow, we sustain the first assignment of error
and overrule the second and third assignments of error. We reverse the conviction on
Count Two and remand for resentencing on Count Eight, possession of heroin, with major
Scioto App. No. 23CA4024 2
drug offender specification, which the trial court previously merged with Count Two for
sentencing purposes. We affirm the trial court’s judgment in all other respects.
I. FACTS AND PROCEDURAL HISTORY
A. Pre-Trial Proceedings
{¶2} In August 2021, Crumpton was indicted on the following counts: (1) Count
One, trafficking in a fentanyl-related compound, a first-degree felony; (2) Count Two,
trafficking in heroin, a first-degree felony; (3) Count Three, trafficking in cocaine, a first-
degree felony; (4) Count Four, aggravated trafficking in drugs (methamphetamine), a
second-degree felony; (5) Count Five, aggravated trafficking in drugs (oxycodone), a
fourth-degree felony; (6) Count Six, aggravated trafficking in drugs (amphetamine), a
fourth-degree felony; (7) Count Seven, possession of a fentanyl-related compound, a first-
degree felony; (8) Count Eight, possession of heroin, a first-degree felony; (9) Count Nine,
possession of cocaine, a first-degree felony; (10) Count Ten, aggravated possession of
drugs (methamphetamine), a second-degree felony; (11) Count Eleven, aggravated
possession of drugs (oxycodone), a fifth-degree felony; (12) Count Twelve, aggravated
possession of drugs (amphetamine), a fifth-degree felony; (13) Count Thirteen,
possession of marihuana, a minor misdemeanor; and (14) Count Fourteen, possessing
criminal tools, a fifth-degree felony. Counts One, Two, Three, Seven, Eight, and Nine
had major drug offender specifications. Crumpton was arraigned on October 15, 2021,
and pleaded not guilty.
{¶3} On February 18, 2022, Crumpton filed motions to suppress identification
evidence, statements, and other evidence. The trial court conducted a hearing on the
Scioto App. No. 23CA4024 3
motions, at which Crumpton withdrew the motion to suppress identification evidence. The
trial court denied the remaining motions to suppress.
{¶4} On July 26, 2022, Crumpton filed a motion to dismiss and/or exclude
evidence premised on selective enforcement of the law based on race by the trooper who
stopped the vehicle in which Crumpton was a passenger. After a hearing, the trial court
denied the motion. The trial court explained:
Crim.R. 12(D) provides: All pretrial motions except as provided in Rule 7(E)
and Rule 16(F) shall be made within thirty-five days after arraignment or
seven days before trial, whichever is earlier. The court in the interest of
justice may extend the time for making pretrial motions.
The Defendant in this matter never asked for leave of court to file the instant
motion. The Defendant has also failed to file his motion as required within
the timeliness of the Rules of Criminal Procedure. This Court at an earlier
hearing decided to allow evidence to be presented on the equal protection
issue raised, but reserved ruling on any procedural issues. This Court finds
that Defendant has failed to seek leave, or to provide argument, on why the
. . . motion to dismiss was not filed in a timely manner. This Court finds that
Defendant’s motion is not well taken and is denied, due to this failure.
The court also found that “the relief requested of suppression of evidence and dismissal
are unavailable a [sic] remedy as to the facts alleged in this matter.” In addition, the court
found Crumpton had not shown that race played any part in the actions of the trooper on
the day in question or in any other case, that the trooper stopped or searched the vehicle
occupied by Crumpton with a discriminatory purpose, or that the Ohio State Highway
Patrol adopted a policy or employed a practice with discriminatory purpose. Therefore,
Crumpton’s equal protection rights had not been violated.
B. Trial and Sentencing
{¶5} The matter proceeded to a jury trial. The State moved to dismiss Counts
Six and Twelve (the amphetamine-related counts) and to amend Counts Three and Nine
Scioto App. No. 23CA4024 4
(the cocaine-related counts) from first-degree felonies to fifth-degree felonies. The trial
court granted the motions.
{¶6} Trooper Nick Lewis of the Ohio State Highway Patrol testified that on August
2, 2021, around 8:41 p.m., a vehicle caught his attention because it appeared to be a
rental vehicle (which are used in a lot of drug trafficking organizations), had no headlights
on, and was following another vehicle too closely. He followed the vehicle and saw it
cross the white dashed center lane line and the white line on the right side of the road.
He initiated a traffic stop and learned that the vehicle was registered to EAN Holdings,
i.e., Enterprise, the driver was Brianna Love, the passenger was Crumpton, they were
Michigan residents, Love had a valid driver’s license, and Crumpton had a suspended
license.
{¶7} During the stop, Trooper Lewis smelled the odor of marihuana coming from
the vehicle, had Love and Crumpton sit in his cruiser, and searched the vehicle. Trooper
Lewis found a marihuana seed on the driver’s seat and small pieces of marihuana under
the driver’s seat and on the floor by the front passenger seat where Crumpton had been
sitting. Trooper Lewis also found a blue North Face bag and a plastic Family Dollar bag
in the trunk which contained suspected contraband. Trooper Lewis arrested Crumpton
and Love and had the vehicle towed. The State presented evidence that after Enterprise
retrieved the vehicle from the towing company, Enterprise found additional suspected
contraband in a black bag inside a makeup bag in the trunk. Trooper Lewis testified that
he saw a makeup bag during the traffic stop, it “was filled with pencils and brushes,” and
he “just kind of pulled them back and didn’t see anything and threw it back in the trunk.”
Scioto App. No. 23CA4024 5
{¶8} The State presented evidence that plastic bags Trooper Lewis seized from
the trunk contained: (1) 75.2428 grams which contained methamphetamine; (2) 0.5457
grams which contained heroin; (3) 46.3740 grams which contained heroin; (4) 88.1642
grams which contained heroin; (5) 9.8991 grams which contained heroin; (6) 50.7583
grams which contained fentanyl; (7) 1.4953 grams which contained cocaine; (8) 6.2985
grams which contained flurofentanyl and fentanyl; (9) 151.6287 grams which contained
flurofentanyl and fentanyl; (10) 24.3509 grams which contained heroin; and (11) 3.1403
grams which contained heroin.1 Plastic bags collected from Enterprise contained: (1)
125.7157 grams which contained fentanyl; (2) 1.0191 grams which contained
flurofentanyl and fentanyl; (3) 0.8005 grams which contained flurofentanyl and fentanyl;
and (4) 0.3733 grams which contained oxycodone (this was the weight and analysis for
one of 120 tablets). The margin of error on each weight was plus or minus 0.0076 grams.
{¶9} Love testified that she met Crumpton through a mutual friend about three
weeks before the traffic stop, and they were potentially going to date. To her knowledge,
he was unemployed and did not have a license at the time. The day before the traffic
stop, Crumpton asked her to drive a vehicle for him the next day because she had a
license. Love testified that the day of the traffic stop, she learned the purpose of the trip
“was for us to traffic drugs, basically.” When asked about her involvement with the drugs,
Love testified, “My involvement was that I was driving. The second involvement was I
had put money into - -into some of the drugs, and I had some of my own personal stuff in
my bag.”
1 Some bags which contained heroin also contained fentanyl. The State asked the jury to consider those
bags only with respect to the heroin-related charges.
Scioto App. No. 23CA4024 6
{¶10} Love testified that she did not rent the vehicle or know who did. She testified
that Crumpton “already had the vehicle and he pulled up to my house and we got in the
car.” She also testified that Crumpton asked her for a loan to buy drugs, and she gave
him $4,000. She did not know what kind of drugs he was going to buy. Love testified that
she brought 120 Percocet pills, or “percs,” which belonged to and had been prescribed to
her. The pills were in her makeup bag, which she threw in the trunk when Crumpton
picked her up. Love testified that if there was fentanyl in her bag, she did not put it in
there or know how it got there. Love testified that she and Crumpton made two stops at
gas stations during their trip and that Crumpton accessed the trunk during them. She did
not know what he was doing in there. Love testified that she was supposed to drop
Crumpton off in Ironton and return to Detroit. Crumpton instructed her to leave the vehicle
at the house of one of his parents. Love testified that she pleaded guilty to 3 drug-related
felonies in connection with the traffic stop and faced a potential sentence of 10.5 years.
{¶11} The State presented footage of Love and Crumpton conversing in the back
seat of Trooper Lewis’s cruiser. At one point, Love says, “Spend my fuckin’ $5,000 on
that dope” and something about losing her money and “percs.” Crumpton gives an
indecipherable response and around 15 seconds later tells Love, “No statement,” and,
“That’s not our car.” The State also presented evidence that after his arrest, Crumpton
called his mom from jail and told her, “I won’t be seeing you for a long time,” and “I can’t
say too much on the phone.” The next day, he made other calls in which he made
statements like, “I’m about to do 10 years in prison bro,” and “I just pray to God that I can
beat this shit man. I think I can so. As long as I don’t, as long as I don’t say too much on
this motherfucking phone.” He also called the third-party who rented the vehicle.
Scioto App. No. 23CA4024 7
{¶12} When the jury initially returned the verdict forms, the court noticed the form
for Count Fourteen was incomplete and directed the jury to continue its deliberations.
Subsequently, the jury again returned the verdict forms, and the court announced that the
jury had found Crumpton guilty on all the remaining counts and specifications and
discharged the jury. However, only 11 of the 12 jurors signed the verdict form for Count
Two.
{¶13} The trial court found that for purposes of sentencing, Counts One and
Seven merged, Counts Two and Eight merged, Counts Three and Nine merged, Counts
Four and Ten merged, and Counts Five and Eleven merged. The State elected to proceed
to sentencing on Counts One, Two, Three, Four, and Five. The court did not merge
Counts Thirteen or Fourteen with any other counts. The court imposed an aggregate
sentence of 24 to 29.5 years, with 16 years being mandatory.
II. ASSIGNMENTS OF ERROR
{¶14} Crumpton presents three assignments of error:
Assignment of Error I: The trial court committed plain error when it accepted
a non-unanimous written jury verdict on Count Two.
Assignment of Error II: The trial court erred in denying Mr. Crumpton’s
motion to dismiss.
Assignment of Error III: The state failed to introduce sufficient evidence to
support Mr. Crumpton’s conviction for the drugs recovered by the rental
vehicle company.
III. NON-UNANIMOUS VERDICT
{¶15} In the first assignment of error, Crumpton contends the trial court committed
plain error when it accepted a non-unanimous written jury verdict on Count Two.
Crumpton asserts that Crim.R. 31(A) requires a unanimous written verdict signed by all
Scioto App. No. 23CA4024 8
jurors concurring therein and that R.C. 2945.171 also requires a written verdict signed by
all jurors concurring therein. Crumpton maintains that the verdict form for Count Two
contains signatures of only 11 of the 12 jurors and that “[t]he trial court did not poll the
jury or otherwise discern if the jury’s verdict was unanimous on Count Two before they
were discharged.” Therefore, he asserts that the trial court committed an obvious error
when it accepted the non-unanimous written verdict on Count Two. And he asserts that
the error affected his substantial right to a unanimous jury verdict. The State concedes
that Crumpton’s conviction and sentence for Count Two must be vacated but asserts that
we should remand for resentencing on Count Eight, which the trial court merged with
Count Two. Crumpton agrees.
{¶16} Crim.R. 52(B) states: “Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” “It is the
defendant’s burden to ‘establish that an error occurred, it was obvious, and it affected his
or her substantial rights.’” State v. Shields, 2023-Ohio-2331, ¶ 72 (4th Dist.), quoting
State v. Fannon, 2018-Ohio-5242, ¶ 21 (4th Dist.). To affect substantial rights, “the trial
court’s error must have affected the outcome of the trial.” State v. Barnes, 94 Ohio St.3d
21, 27 (2002). “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶17} “‘Ohio has long recognized that a nonunanimous verdict is unconstitutional
and void.’” State v. Martin, 2024-Ohio-2408, ¶ 16 (4th Dist.), quoting State v. Scott, 2021-
Ohio-2676, ¶ 17 (8th Dist.), citing Work v. State, 2 Ohio St. 296 (1853), overruled on other
grounds, State ex rel. Columbus v. Boyland, 58 Ohio St.2d 490 (1979), syllabus. In
Scioto App. No. 23CA4024 9
addition, Crim.R. 31(A) states: “The verdict shall be unanimous. It shall be in writing,
signed by all jurors concurring therein, and returned by the jury to the judge in open court.”
And R.C. 2945.171 states: “In all criminal cases the verdict of the jury shall be in writing
and signed by each of the jurors concurring therein.”
{¶18} “‘The requirement imposed under Crim.R. 31(A) and R.C. 2945.171 that a
jury verdict in a criminal case be in writing is procedural rather than substantive.’” State
v. Martinez, 1995 WL 680005 (6th Dist. Nov. 17, 1995), quoting State v. Carmack, 61
Ohio App.3d 351, 355 (1st Dist. 1989). “But no conviction may stand on a non-unanimous
verdict because a defendant has a ‘substantial right to a unanimous jury verdict.’” State
v. Pippins, 2020-Ohio-503, ¶ 29 (10th Dist.), quoting State v. Rawson, 2016-Ohio-1403,
¶ 24 (10th Dist.). “Thus, an unanimity error is a ‘defect[ ] affecting substantial rights.’”
(Alteration in original). Id., quoting Crim.R. 52(B).
{¶19} In this case, the trial court committed plain error when it accepted a non-
unanimous written jury verdict on Count Two. The verdict form on Count Two contains
the signatures of only 11 of the 12 jurors, and the trial court did not ascertain whether the
verdict on Count Two was unanimous before it discharged the jury. Accordingly, we
sustain the first assignment of error, reverse Crumpton’s conviction on Count Two, and
remand for the trial court to resentence him on Count Eight, possession of heroin, with
major drug offender specification, which the court previously merged into Count Two for
sentencing purposes. See State v. Turner, 2021-Ohio-2216, ¶ 11 (2d Dist.), quoting State
v. Baker, 2018-Ohio-1865, ¶ 22 (2d Dist.) (“‘Where offenses are merged for sentencing
and the conviction for the offense upon which the defendant was sentenced is vacated,
Scioto App. No. 23CA4024 10
the trial court must resentence the defendant on the offense that was merged with the
vacated offense, again merging any offenses as appropriate’”).
IV. MOTION TO DISMISS
{¶20} In the second assignment of error, Crumpton contends the trial court erred
in denying his motion to dismiss. Crumpton maintains that he presented evidence which
established that Trooper Lewis engaged in selective enforcement by targeting black
motorists for traffic stops and searches, in violation of Crumpton’s equal protection rights,
and that the remedy for selective enforcement is dismissal. Alternatively, he asks us to
remand to the trial court “to develop a more expansive record on his claim of selective
enforcement.” The State contends we should overrule this assignment of error “on
procedural grounds alone” because the trial court properly denied the motion to dismiss
as untimely under Crim.R. 12. Alternatively, the State asserts that the selective
enforcement claim lacks merit.
{¶21} The trial court denied the motion to dismiss on both procedural grounds,
i.e., it was untimely, and substantive grounds. In his appellate brief, Crumpton challenges
only the substantive grounds for the denial of his motion. At oral argument, Crumpton did
challenge the procedural grounds for the court’s ruling. However, “‘[a] party may not
advance new arguments for the first time at oral argument.’” In re C.R., 2024-Ohio-2954,
¶ 24 (11th Dist.), quoting State v. Snider, 2022-Ohio-4566, ¶ 25 (11th Dist.). See also
Hughes v. Hughes, 2020-Ohio-4653, ¶ 19 (10th Dist.) (a party may not “raise an argument
for the first time at oral argument, particularly when the party had ample opportunity to
explore such issues in its brief”). “When an appellant’s initial brief fails to mention an
argument as a basis for reversing the judgment under review, we need not address that
Scioto App. No. 23CA4024 11
argument in deciding the appeal.” State v. Roberts, 2017-Ohio-2998, ¶ 85, citing State v.
Quarterman, 2014-Ohio-4034, ¶ 17-19. Because Crumpton’s initial brief failed to mention
his argument challenging the procedural grounds for the denial of his motion, it is not
properly before this court.
{¶22} “When a trial court grants judgment on multiple, alternative bases and an
appellant does not challenge one of those bases on appeal, [an appellate court] will
uphold the judgment on the unchallenged basis.” Schutte v. Summit Cty. Sheriff’s Office,
2018-Ohio-2565, ¶ 21 (9th Dist.). And because Crumpton did not properly challenge one
of the alternative bases for the denial of his motion to dismiss, we uphold the denial on
the unchallenged basis. However, we observe that even if we entertained Crumpton’s
oral argument regarding the procedural grounds for the denial of his motion, it would fail
because he provided no legal authority to support it. See generally State v. Trammell,
2017-Ohio-8198, ¶ 29 (12th Dist.), citing App.R. 16(A)(7) (“An appellant has the burden
of demonstrating error on appeal through an argument that is supported by citations to
legal authority and facts in the record”).
{¶23} For the foregoing reasons, we overrule the second assignment of error.
V. SUFFICIENCY OF THE EVIDENCE
{¶24} In the third assignment of error, Crumpton contends the State failed to
introduce sufficient evidence to support his “conviction for the drugs recovered by the
rental vehicle company.” Crumpton was convicted of offenses related to two types of
drugs recovered by Enterprise—oxycodone and fentanyl. However, his argument focuses
on his conviction on Count Five for aggravated trafficking in drugs, which pertains to the
oxycodone. Notably, even without the fentanyl recovered by Enterprise, the amount of
Scioto App. No. 23CA4024 12
the drug Trooper Lewis found was enough to support Crumpton’s first-degree felony
conviction for trafficking in a fentanyl-related compound with major drug offender
specification.
{¶25} Crumpton maintains that the State failed to produce sufficient evidence to
convict him as either a principal offender or an aider or abettor. Crumpton asserts that to
sustain a conviction as a principal offender, the State had to prove that he “had control or
possession of the drugs in question.” He acknowledges constructive possession exists
when an individual knowingly exercises dominion and control over an object but asserts
that the State failed to show that he exercised dominion and control over the pills and was
consciously aware of them prior to the traffic stop. Crumpton claims it is undisputed that
the pills containing oxycodone belonged to Love, that she put the pills in her makeup bag,
and that she threw the bag in the trunk before the trip began. He also asserts that Love
told him she had the “percs” in her bag while sitting in the back of the cruiser. Crumpton
asserts that he was not the driver of the vehicle, and there is insufficient evidence to
establish that he rented the vehicle. He also claims there is no evidence he knew about
the oxycodone pills before Love talked about them in Trooper Lewis’s cruiser. Crumpton
maintains that his “lack of knowledge” is “bolstered” by the fact that “Trooper Lewis failed
to uncover the pills in the makeup bag during his search.”
{¶26} Crumpton also contends the State failed to produce sufficient evidence to
establish that he “knowingly supported, assisted, encouraged, cooperated with, advised,
or incited Ms. Love to traffic the oxycodone pills.” He claims the State “did not introduce
any physical evidence, such as cell phone records or text messages, nor did it present
any statements or testimony to show [he] had knowingly aided and abetted Ms. Love.”
Scioto App. No. 23CA4024 13
He asserts Love’s testimony shows that the oxycodone belonged to her, she packaged it
in her makeup bag before being picked up, and she put the bag in the trunk. He contends
Love’s statements indicate that he “was unaware of the oxycodone pills contained in her
makeup bag and it was her independent choice to bring the pills along in order to sell
them.” Therefore, there is insufficient evidence to establish his “intent to knowingly aid
and abet in the trafficking of the oxycodone pills.”
{¶27} In reviewing the sufficiency of the evidence for a conviction, “[t]he 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, superseded by constitutional amendment on other grounds as stated in
State v. Smith, 80 Ohio St.3d 89, 102, fn. 4 (1997), and following Jackson v. Virginia, 443
U.S. 307 (1979). “A sufficiency assignment of error challenges the legal adequacy of the
state’s prima facie case, not its rational persuasiveness.” State v. Anderson, 2019-Ohio-
395, ¶ 13 (4th Dist.). “That limited review does not intrude on the jury’s role ‘to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.’” Musacchio v. United States, 577 U.S. 237, 243 (2016),
quoting Jackson at 319. A reviewing court will not overturn a conviction based on
insufficient evidence “‘unless reasonable minds could not reach the conclusion that the
trier of fact did.’” State v. Cook, 2019-Ohio-4745, ¶ 15 (4th Dist.), quoting State v.
Bradshaw, 2018-Ohio-1105, ¶ 15 (4th Dist.).
{¶28} R.C. 2925.03(A)(2) states: “No person shall knowingly * * * [p]repare for
shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled
Scioto App. No. 23CA4024 14
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.” R.C. 2901.22(B) defines
the culpable mental state of “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 the
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.
{¶29} R.C. 2925.03(C)(1) states that with certain exceptions, “[i]f the drug involved
in the violation is any compound, mixture, preparation, or substance included in schedule
I or schedule II, . . . whoever violates division (A) of this section is guilty of aggravated
trafficking in drugs.” This offense is a fourth-degree felony unless an exception applies.
R.C. 2925.03(C)(1)(a). The trial court instructed the jury that oxycodone is a schedule II
controlled substance.
{¶30} R.C. 2923.03(A)(2) states 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.” “A conviction for 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.’” State v. Smith, 2022-Ohio-371, ¶ 53 (4th Dist.) (“Smith”), quoting State v.
Johnson, 93 Ohio St.3d 240 (2001), syllabus. “‘Participation in criminal intent may be
inferred from presence, companionship and conduct before and after the offense is
Scioto App. No. 23CA4024 15
committed.’” Johnson at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34 (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 (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.{¶31} “We further observe that the complicity statute does not require the state to
charge the defendant with complicity.” Smith at ¶ 54. “Instead, R.C. 2923.03(F) allows
the state to charge the defendant as a principal offender: ‘[a] charge of complicity may be
stated in terms of [the complicity statute], or in terms of the principal offense.’” (Bracketed
material in original.) Id., quoting R.C. 2923.03(F).
{¶32} “To sustain an R.C. 2925.03(A)(2) trafficking conviction as a principal
offender, the state must prove that a defendant had control over, i.e., possessed, the
illegal substance.” Smith at ¶ 59, citing State v. Cabrales, 2008-Ohio-1625, ¶ 30.
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). “Whether a
person knowingly possessed a controlled substance ‘is to be determined from all the
attendant facts and circumstances available.’” Smith at ¶ 60, quoting State v. Teamer,
82 Ohio St.3d 490, 492 (1998).
{¶33} Possession “‘may be individual or joint, actual or constructive.’” State v.
Whitehead, 2022-Ohio-479, ¶ 89 (4th Dist.), quoting State v. Wolery, 46 Ohio St.2d 316,
332 (1976). “Actual possession exists when the circumstances indicate that an individual
Scioto App. No. 23CA4024 16
has or had an item within [the individual’s] immediate physical possession.” State v. Fry,
2004-Ohio-5747, ¶ 39 (4th Dist.). “Constructive possession exists when an individual
knowingly exercises dominion and control over an object, even though that object may
not be within [the individual’s] immediate physical possession.” State v. Hankerson, 70
Ohio St.2d 87 (1982), syllabus. “For constructive possession to exist, the state must show
that the defendant was conscious of the object’s presence.” Whitehead at ¶ 89, citing
Hankerson at 91. “Both dominion and control, and whether a person was conscious of
the object’s presence, may be established through circumstantial evidence.” Smith, 2022-
Ohio-371, at ¶ 62 (4th Dist.). “Moreover, ‘a factfinder can “conclude that a defendant who
exercises dominion and control over an automobile also exercises dominion and control
over illegal drugs found in the automobile.”’” Id. at ¶ 64, quoting State v. Yakimicki, 2013-
Ohio-2663, ¶ 23 (10th Dist.), quoting State v. Rampey, 2006-Ohio-1383, ¶ 37 (5th Dist.).
{¶34} In this case, the prosecution presented sufficient evidence that, if believed,
established that Crumpton knowingly transported, and exercised dominion and control
over, the oxycodone, or that he knowingly aided or abetted the principal offender in
committing the offense. Love testified that she and Crumpton traveled from Michigan to
Ohio for the purpose of trafficking drugs and that Crumpton provided the vehicle for the
trip. There is evidence Crumpton knew the third-party who rented the car and that
Crumpton exercised dominion and control over the car—he drove the car to Love’s house,
asked her to drive the car to Ohio for the purpose of trafficking drugs, accessed the trunk
during the trip, and instructed Love on where to take the car after she dropped him off.
Crumpton’s dominion and control over the car permitted an inference that he also had
dominion and control over the oxycodone discovered inside it. See Smith at ¶ 64-65.
Scioto App. No. 23CA4024 17
{¶35} In addition, the jury could have inferred that Crumpton knew the oxycodone
was in the vehicle and knew or had reasonable cause to believe that it was intended for
sale or resale by him or another person. Again, Love testified that the purpose of the trip
was trafficking drugs and that she loaned Crumpton money to buy drugs. It is true Love
testified that the pills at issue were prescribed to her and that they were in her makeup
bag, which she put in the trunk. However, the pills were in a clear bag, not a prescription
bottle. The clear bag was in a black bag inside Love’s makeup bag, and the State
presented evidence which supports an inference that Crumpton opened the makeup bag
and black bag during the trip. There was fentanyl in the black bag, Love denied any
knowledge of it, and she testified that Crumpton accessed the trunk during their trip.
Although Crumpton claims there is a specific time in the cruiser footage when Love tells
him she has “percs” in her bag, we did not hear such a statement at that point in the
footage. Much of the conversation around that time is indecipherable. There is
discussion of Love’s bag, but we heard no mention of “percs” then. There is a later point
in the footage when Love makes a comment about losing her “percs.” Crumpton’s initial
response is indecipherable, but he does not appear to be surprised by her comment. And
shortly after it, he tells Love to make “[n]o statement” and suggests a defense—the car is
not theirs.
{¶36} Because the State introduced sufficient evidence to support the conviction
on Count Five, we overrule the third assignment of error.
VI. CONCLUSION
{¶37} For the foregoing reasons, we sustain the first assignment of error and
overrule the second and third assignments of error. We reverse Crumpton’s conviction
Scioto App. No. 23CA4024 18
on Count Two and remand for the trial court to resentence him on Count Eight, possession
of heroin, with major drug offender specification. We affirm the trial court’s judgment in
all other respects.
JUDGMENT AFFIRMED IN PART
AND REVERSED IN PART.
CAUSE REMANDED.
Scioto App. No. 23CA4024 19
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and appellee shall split the costs.
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 COURT OF COMMON PLEAS 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.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, 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.