State v. Collins , 2011 Ohio 4808 ( 2011 )

[Cite as State v. Collins, 2011-Ohio-4808.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95422
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TONY D. COLLINS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-529965 and CR-533453
BEFORE: Jones, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 22, 2011
ATTORNEY FOR APPELLANT
John T. Castele
1310 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Marc D. Bullard
Erica Barnhill
Assistant Prosecuting Attorneys
The Justice Center, 8 Floor
ht
1200 Ontario Street
Cleveland, Ohio 44113
ON RECONSIDERATION1
LARRY A. JONES, J.:
{¶ 1} Defendant-appellant, Tony D. Collins, appeals his drug possession, drug
1
The original announcement of decision, State v. Collins, Cuyahoga App. No. 95422,
2011-Ohio-2660, released June 2, 2011, is hereby vacated. This opinion, issued upon
reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C); see, also,
S.Ct.Prac.R. 2.2(A).
trafficking, and possession of criminal tools convictions. We affirm in part and reverse and
remand in part.
I
{¶ 2} Collins was indicted in Case No. CR-529965 as follows: Count 1, drug
possession with forfeiture of a cell phone; Count 2, drug trafficking with forfeiture of a cell
phone; and Count 3, possession of criminal tools with forfeiture of a cell phone. Collins was
also indicted in Case No. CR-533453 as follows: Count 1, drug possession; and Count 2,
drug trafficking with a schoolyard specification. The cases were consolidated and heard
before the court.
{¶ 3} At the conclusion of the state’s case, Collins made a Crim.R. 29 motion for
acquittal, which was denied. The defense rested without presenting any evidence and
renewed its Crim.R. 29 motion; the motion was again denied. The court found Collins guilty
of all the charges. The court merged the drug trafficking and drug possession convictions
and the state elected to proceed on the two trafficking charges.
{¶ 4} Collins was sentenced to a six-year prison term. In Case No. CR-529965,
Collins was sentenced to two years for drug trafficking, to be served concurrently with six
months for possession of criminal tools. Collins was ordered to forfeit the cell phone. In
Case No. CR-533453, Collins was sentenced to a four-year term, to be served consecutively to
the sentence in Case No. CR-529965.
{¶ 5} Collins now raises the following three assignments of error:
{¶ 6} “[I.] The state produced insufficient evidence to support the defendant’s
convictions.
{¶ 7} “[II.] The defendant’s convictions were against the manifest weight of the
evidence.
{¶ 8} “[III.] The defendant was denied the effective assistance of counsel.”
II
A. The First Package
{¶ 9} Detective Neil Hutchinson, a Cleveland police officer with the Narcotics Unit,
testified that on October 9, 2009, he observed a suspicious package at a Federal Express
sorting facility in Cleveland. After a trained dog alerted that the package contained illicit
drugs, a search warrant was obtained and the package was opened. Approximately 6,573
grams of marijuana in a round plastic container were discovered.
{¶ 10} Detective Hutchinson obtained an anticipatory warrant for the address where the
package was destined and arranged a controlled delivery to the address. Posing as a Federal
Express employee, Hutchinson delivered the package to its destination, where it was signed for
and accepted by Collins’s brother, James Collins.
{¶ 11} Detective Thomas Klamert, also a member of the Cleveland Police Narcotics
Unit, was working surveillance when the package was delivered. Klamert testified that after
Hutchinson had delivered the package and driven away, James made a call on his cell phone.
A short time later, Collins arrived, retrieved the package from James, and then walked a few
houses down the street. While on the porch of a vacant home, Collins was “monkeying with
the box.” It was later determined that Collins had removed the shipping label from the box
and thrown it on the front lawn. Collins and his brother were arrested.
B. The Second Package
{¶ 12} On January 14, 2010, an inspector for the United States Postal Service was
alerted to a suspicious package in a Cleveland mail sorting facility. The inspector conducted
an investigation and obtained a federal warrant to open the package. A cellophane-wrapped
bundle of 4,567 grams of marijuana was discovered. The inspector and Cleveland police
arranged for a controlled delivery of the package to its destination.
{¶ 13} The delivery was first attempted on January 20, 2010. Trent Collins answered
the door at the address, but told the inspector that the recipient did not live at the address.
The inspector left retrieval information for the intended recipient with Trent. Several calls
were subsequently made to the United States Postal Service concerning the package, and an
attempt to retrieve it was made.
{¶ 14} A second delivery was arranged for January 27, 2010. Collins answered the
door, told the inspector that the intended recipient resided at the address, and signed for the
package using the name “John Jones.” The inspector gave Collins the package and left.
{¶ 15} Detective Joseph Bovenzi had been conducting surveillance of the delivery.
Bovenzi testified that after Collins accepted the package, he went inside the house, but came
back out approximately 30 seconds later and placed the package on the porch a few feet from
the doorway. The police then arrested Collins and seized the package. Collins was heard
saying that the police did not have anything on him and he did not even sign his real name.
III.
{¶ 16} In his first assignment of error, Collins contends that his convictions were not
supported by sufficient evidence.
{¶ 17} Under Crim.R. 29(A), a court “shall order the entry of a judgment of acquittal
of one or more offenses * * * if the evidence is insufficient to sustain a conviction of such
offense or offenses.” A challenge to the sufficiency of the evidence supporting a conviction
requires a court to determine whether the state has met its burden of production at trial. State
v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541. On review for
sufficiency, courts are to assess not whether the state’s evidence is to be believed, but whether,
if believed, the evidence against a defendant would support a conviction. Id. The relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two
of the syllabus.
A. Drug Trafficking
{¶ 18} Collins first challenges his drug trafficking convictions, contending that “[t]here
was no evidence that he prepared anything for distribution, only that he accepted packages that
were found to contain marijuana.”
{¶ 19} Drug trafficking under R.C. 2925.03(A)(2) provides that:
“[n]o person shall knowingly * * * [p]repare for shipment, ship, transport, deliver,
prepare for distribution, or distribute a controlled substance, when the offender knows
or has reasonable cause to believe that the controlled substance is intended for sale or
resale by the offender or another person.”
{¶ 20} Thus, to convict Collins for drug trafficking the state needed to prove that he
knowingly did one of the following: (1) prepared the marijuana for shipment; (2) shipped,
transported, or delivered the marijuana; (3) prepared the marijuana for distribution; or (4)
distributed the marijuana. State v. Hatcher (July 31, 1997), Cuyahoga App. No. 70857.
There was no evidence that Collins did any of the above.
{¶ 21} We are not persuaded by the state’s contention that Collins “prepared the
marijuana for distribution by accepting delivery of the packages.” In its brief, the state cites
four cases in support of its position: State v. Patterson (1982), 69 Ohio St.2d 445, 432
N.E.2d 802; State v. Ballard (May 31, 1990), Cuyahoga App. No. 56676; State v. Saddler
(Oct. 21, 1999), Cuyahoga App. No. 74218; and State v. Anderson (Nov. 27, 1996), Cuyahoga
App. No. 69620.
{¶ 22} Saddler involved a drug possession, not trafficking, conviction. In Ballard, the
defendant made a sale of drugs, and in Patterson, the defendant made an offer to sell; both
cases are unlike the instant case. (See R.C. 2925.03(A)(1), drug trafficking, providing that
“[n]o person shall knowingly * * * [s]ell or offer to sell a controlled substance.”).
{¶ 23} Anderson is the only case cited by the state that supports its position, and we
disagree with its holding that, because the defendant possessed a “significant” amount of
cocaine, “[a] reasonable conclusion * * * is that [he] intended not to personally consume the
cocaine, but knowingly prepared it for shipment or distribution.”
{¶ 24} The “preparation for shipment” portion of the drug trafficking statute requires
some evidence that the offender actually prepares a drug for shipment, or ships a drug, or
transports a drug, or delivers a drug, or prepares for distribution a drug, or actually distributes
a controlled substance, when the offender knows or has reasonable cause to believe that the
controlled substance is intended for sale or resale by the offender or another person.
{¶ 25} Normally, convictions are based on specific facts that support or establish the
elements of a crime charged. While it is certainly acceptable to infer certain facts or
circumstances from the evidence at hand, inferences that establish criminal elements based on
other inferences not established in fact thwart how criminal liability should be established in
our system of justice.
{¶ 26} An analogous scenario to this situation would be where a person is angry at a
neighbor, then makes a verbal threat to that neighbor, and stalks the neighbor outside his
home. Given these facts, we might rationally assume the person may attack the neighbor.
But that possibility or probability does not satisfy the elements involved for an assault or
felonious assault conviction. That person might be charged and found guilty of a variety of
other offenses, but unless the authorities can establish by some direct evidence that the person
knowingly caused or attempted to cause physical harm, or serious physical harm, or physical
harm by means of a deadly weapon, it is unlikely the person can ever be convicted of assault
or felonious assault. See R.C. 2903.11 and 2903.13.
{¶ 27} Here, there was overwhelming evidence that Collins possessed a quantity of
marijuana that subjected him to an enhanced penalty based on that quantity. Further, while we
can rationally assume that Collins did not receive this quantity of marijuana simply to sit in his
living room and smoke it all by himself, the act of “receiving” is not one of the enumerated
elements under R.C. 2925.03(A)(2). Establishing that the person committed a crime is not
possible solely using inferences from assumptions about conduct without factual evidence
supporting the actual elements of the crime charged.
{¶ 28} Had the legislature included the phrases “possession of an amount indicating
sale or resale” or “receiving an amount indicating sale or resale,” the task of meeting the
elements of R.C. 2925.03(A)(2) would be simple.
{¶ 29} The statute as written, however, indicates prospective conduct that is
particularized and not based on common assumptions. A plain reading indicates that it
requires an offender to take some action in furtherance of the goal of accomplishing
trafficking by doing one or more of the proscribed acts under the statute. Receipt of drugs
alone is not one of the enumerated methods of violating the “preparation for shipment” statute.
{¶ 30} Unless police can lay out the conspiracy to distribute drugs, including details on
the origin of the shipment, method of shipment, and parties involved in the shipment (real or
otherwise), in a manner designed to prove the act of receipt is part of an overall drug
conspiracy, the elements that an offender prepares a drug for shipment, or ships a drug, or
transports a drug, or delivers a drug, or prepares for distribution a drug, or actually distributes
a controlled substance, when the offender knows or has reasonable cause to believe that the
controlled substance is intended for sale or resale by the offender or another person, are not
met by evidence of receipt alone.
{¶ 31} In light of the above, we sustain Collins’s first assignment of error as it relates
to the drug trafficking convictions.
B. Drug Possession
{¶ 32} Collins was convicted of drug possession under R.C. 2925.11(A), which
provides that “[n]o person shall knowingly obtain, possess, or use a controlled substance.”
{¶ 33} Collins received two packages containing marijuana. He contends, however,
that the evidence was insufficient to establish that he knew what was in the packages. We
disagree.
{¶ 34} A person acts “knowingly” when “he is aware that his conduct will probably
cause a certain result or will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B).
Knowledge is generally not susceptible to direct proof, but must be determined through
inferences drawn from the surrounding facts and circumstances. State v. Green (Apr. 20,
1988), Hamilton App. No. C-860791.
{¶ 35} “‘Possess’ or ‘possession’ means having control over a thing or substance, but
may not be inferred solely from mere access to the thing or substance through ownership or
occupation of the premises upon which the thing or substance is found.” R.C. 2925.01(K).
Possession may be actual or constructive. State v. Haynes (1971), 25 Ohio St.2d 264, 269-270,
267 N.E.2d 787. Although circumstantial evidence is sufficient to support the element of
constructive possession, constructive possession cannot be inferred by a person’s mere
presence in the vicinity of contraband. See Jenks; State v. Giles (May 12, 1994), Cuyahoga
App. No. 63709. Constructive possession requires some evidence that the person exercised
or has the power to exercise dominion or control over the object, even though that object may
not be within his immediate physical possession. State v. Wolery (1976), 46 Ohio St.2d 316,
332, 348 N.E.2d 351.
{¶ 36} Detective Hutchinson testified that the first package was sent using a false
name, address, and phone number for the sender, and the phone number was the same for the
sender and recipient. The named recipient did not reside at the destination address, and the
package was heavily taped and sent overnight at a cost of $101. Hutchinson testified that this
was often indicative of a package that contained drugs.
{¶ 37} Collins arrived on the scene a short time after his brother received the package
and took the package from the brother. Collins then “monkeyed” with the box, removed the
shipping label, and threw the label on the front lawn of an abandoned house.
{¶ 38} The above mentioned evidence was sufficient to establish that Collins possessed
the package knowing its contents.
{¶ 39} In regard to the second package, the inspector testified that the name, phone
number, and address of the sender listed on the second package were fictitious. He also
spoke to the postal carrier who serviced the block of the listed address of the sender and was
informed that no one by the listed name lived on that block, and the inspector confirmed with
various databases that the address did not exist. Further, Collins signed for the second
package using a false name and claimed that the named recipient resided at the address,
despite the inspector having been informed during the previous attempted delivery that no one
by that name lived there.
{¶ 40} “‘It is today universally conceded that the fact of an accused’s flight, escape
from custody, resistance to arrest, concealment, assumption of a false name, and related
conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.’”
United States v. Griffin (C.A.6, 1999), 172 F.3d 874, quoting United States v. Serio (C.A.6,
1971), 440 F.2d 827, 832.
{¶ 41} The evidence presented by the state was also sufficient to support a finding that
Collins possessed the second package knowing its contents.
{¶ 42} In light of the above, the first assignment of error is overruled as it relates to the
drug possession convictions.
C. Schoolyard Specification
{¶ 43} Collins was indicted in Case No. CR-533453 of drug trafficking with a
schoolyard specification. Because we find that the trafficking convictions were not supported
by sufficient evidence, we necessarily also find that the schoolyard specification was not
supported by sufficient evidence. Accordingly, the first assignment of error is sustained as it
relates to the schoolyard specification under Count 2 of Case No. CR-533453.
D. Possession of Criminal Tools
{¶ 44} R.C. 2923.24, governing possession of criminal tools, provides that “[n]o
person shall possess or have under the person’s control any substance, device, instrument, or
article, with purpose to use it criminally.”
{¶ 45} The state contends that Collins used his cell phone in obtaining the first package
from his brother James. Detective Klamert testified that a short time after receiving the
package, James made a call on his cell phone, and a short time after that, Collins arrived.
Klamert testified that he observed both men talking on their cell phones. However, the state
did not investigate the cell phone records to determine if appellant was talking to James prior
to receiving the package from him. Moreover, the state did not examine the phones to
determine what phone number was last dialed or from what number the last incoming call was
received.
{¶ 46} Thus, the testimony regarding the possession of criminal tools charge consisted
solely on the police’s observations of both men talking on cell phones prior to James giving
the package to Collins. On this record, the state did not present sufficient evidence with
which the court could make a reasonable inference that Collins used his cell phone with a
criminal purpose.
{¶ 47} Recently, in State v. Brooks, Cuyahoga App. No. 94978, 2011-Ohio-1679, ¶23,
this court reaffirmed the holding in State v. Byers, Cuyahoga App. No. 94922, 2011-Ohio-342,
¶9, that “[t]he ubiquitousness of cell phones is such that the mere possession of a cell phone is
not ipso facto proof that it was used in drug trafficking.” In Brooks, this court reversed a
conviction of possession of criminal tools where insufficient evidence existed in the record to
demonstrate that the defendant actually used the cell phone in furtherance of drug trafficking.
Id.{¶ 48} Here, all we have is an inference based on an inference. First, that James
called Collins, and, secondly, that the call aided Collins in the possession of marijuana.
These multiple inferences we are left with are inconsistent with the state’s burden of proof.
Accordingly, the first assignment of error is sustained as it relates to the possession of criminal
tools conviction, Count 3 of Case No. CR-529965, and the forfeiture specifications attendant
to all three counts in that case.
IV.
{¶ 49} In his second assignment of error, Collins contends that his convictions were
against the manifest weight of the evidence.
{¶ 50} In reviewing a claim challenging the manifest weight of the evidence, “[t]he
question to be answered is whether there is substantial evidence upon which a jury could
reasonably conclude that all the elements have been proved beyond a reasonable doubt. In
conducting this review, we must examine the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether the jury
clearly lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.” (Internal quotes and citations omitted.) State v.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶81.
{¶ 51} Because we find that the evidence was insufficient as to the drug trafficking and
possession of criminal tools convictions, we only consider Collins’s challenge as it relates to
the drug possession conviction.
{¶ 52} After examining the entire record, weighing the evidence and all reasonable
inferences, we are unable to conclude that the court clearly lost its way and created such a
manifest miscarriage of justice in convicting Collins of drug possession. For the reasons
discussed under the sufficiency of the evidence analysis, the record demonstrates that Collins
possessed both packages with knowledge of their contents. Accordingly, the weight of the
evidence supported Collins’s drug possession conviction, and the second assignment of error is
overruled.
V.
{¶ 53} For his third assigned error, Collins contends that he was denied effective
assistance of counsel. Specifically, Collins argues that his trial counsel was constitutionally
deficient for stipulating to the accuracy of the laboratory report stating the amount and type of
drugs involved, and failing to object to testimony of the detectives regarding the report, in
violation of his right to confront witnesses against him as stated in Crawford v. Washington
(2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, and Melendez–Diaz v. Massachusetts
(2009), 557 U.S. , 129 S.Ct. 2527, 174 L.Ed.2d 314.
{¶ 54} In order to substantiate a claim of ineffective assistance of counsel, Collins is
required to demonstrate that: (1) the performance of defense counsel was seriously flawed and
deficient; and (2) the result of his trial or legal proceeding would have been different had
defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, paragraph two of the syllabus; State v. Brooks (1986),
25 Ohio St.3d 144, 147, 495 N.E.2d 407.
{¶ 55} In Melendez–Diaz, the United States Supreme Court ruled that the presentation
of a lab report without the testimony of the technician conducting the analysis violated a
defendant’s Sixth Amendment right to confrontation because the report was testimonial under
Crawford.
{¶ 56} Here, Collins has failed to demonstrate a reasonable probability that the
outcome of his trial would have been different. The contents of both packages field tested
positive for marijuana. Further, the inspector weighed the contents of the second package in
the field and determined its weight, including cellophane wrapping, to be 12 pounds and 7.55
ounces. This was consistent with a weight of 4,567 grams as stated in the report.
2
{¶ 57} The Ohio Supreme Court has held that Ohio’s “notice and demand” statutes
3
adequately protect this right to confrontation and that the right can be waived. State v.
Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, paragraph one of the
syllabus. The waiver of such a right can be a tactic of trial. State v. Jackson, Ashtabula
App. No. 2007-A-0079, 2010-Ohio-820, ¶30-32. Therefore, because there is no evidence
that this matter of trial strategy would have changed the outcome of Collins’s trial, the third
2
Approximately ten pounds.
3
R.C. 2925.51(C) is applicable in this case and states, “[t]he report shall not be prima-facie
evidence of the contents, identity, and weight or the existence and number of unit dosages of the
substance if the accused or the accused’s attorney demands the testimony of the person signing the
report, by serving the demand upon the prosecuting attorney within seven days from the accused or
the accused’s attorney’s receipt of the report.”
assignment of error is overruled.
VI.
{¶ 58} In conclusion, the trial court’s judgment is affirmed in part and reversed and
remanded in part. The drug trafficking, attendant schoolyard specification, and possession of
criminal tools convictions are reversed and upon remand of the case shall be vacated. The
cell phone forfeiture order is also reversed and on remand shall be vacated. The drug
possession conviction is affirmed.
It is ordered that appellant recover of appellee his 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.
LARRY A. JONES, JUDGE
SEAN C. GALLAGHER, J., CONCURS WITH
SEPARATE OPINION;
FRANK D. CELEBREZZE, JR., P.J., CONCURS
IN PART AND DISSENTS IN PART WITH
SEPARATE OPINION
SEAN C. GALLAGHER, J., CONCURRING:
While I concur with the judgment and analysis of the majority on reconsideration, I
nevertheless write separately to address the failure of our court to en banc this issue. I
believe this decision is arguably in conflict with, or at a minimum requires clarification from
an earlier decision of our court in State v. Connor, Cuyahoga App. No. 84073,
2005-Ohio-1971.
Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland State Univ., 120
Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, we are obligated to resolve conflicts
between two or more decisions of this court on any issue that is dispositive of the case in
which the application is filed.
In Connor, the defendant was convicted of both drug possession and preparation for
shipment after being apprehended with over 50 pounds of marijuana in his luggage at a local
airport. The court noted:
“With respect to the charge of possession of drugs for sale, an inference may be drawn
from the circumstances surrounding the defendant at the time of his arrest and the quantity and
character of the narcotics seized at the time. In the instant case, approximately fifty pounds
of marijuana was discovered in the two bags. A prudent person could conclude that those
narcotics were in his possession for the purpose of sale and not for personal consumption.
Therefore, the jury’s finding Conner guilty of possession of drugs and possession of drugs for
sale was proper.”
I do not believe the elements of “preparation for shipment” under R.C. 2925.03(A)(2)
allow for an inference that the weight or volume of drugs may satisfy one of the enumerated
elements of that statute. Nevertheless, I draw a distinction between the facts in Connor and
the present case by noting that in Connor the offender was actively shipping or transporting
the drugs, whereas here, Collins was accepting or receiving the drugs. The elements of R.C.
2925.03(A)(2) do not encompass receiving, signing for, or accepting.
I believe this case should have been the subject of an en banc review by our court, and
I do not believe the weight or volume of drugs alone can serve to circumvent proving the
enumerated elements of drug trafficking under R.C. 2925.03(A)(2).
FRANK D. CELEBREZZE, JR., J., CONCURRING IN PART AND DISSENTING IN
PART:
I concur with the majority’s opinion regarding appellant’s convictions for possession of
criminal tools, drug possession and, for different reasons, the school yard specification.
However, I respectfully dissent with the majority’s resolution of appellant’s drug trafficking
convictions.
To establish that appellant was guilty of drug trafficking, two police officers testified
that, based on their extensive training and experience, the quantity of marijuana involved was
indicative of trafficking. “We have held in several cases that police officers may testify to
the nature and amount of drugs and its significance in drug trafficking.” State v. Young,
Cuyahoga App. No. 92744, 2010-Ohio-3402, ¶19, citing State v. Fellows (May 22, 1997),
Cuyahoga App. No. 70900, citing State v. Crenshaw (June 4, 1992), Cuyahoga App. No.
60671; State v. Wilson (Oct. 3, 1996), Cuyahoga App. No. 69751.
The testimony of Det. Hutchinson and United States Postal Service Inspector
Martin Cernelich provides a strong indication that appellant served as the last leg in the
transportation of marijuana from California to Cleveland for distribution and sale. This is
sufficient evidence that appellant violated R.C. 2925.03(A)(2).
This court has held that, “[w]ith respect to the charge of possession of drugs for sale
[R.C. 2925.03], an inference may be drawn from the circumstances surrounding the defendant
at the time of his arrest and the quantity and character of the narcotics seized at the time.”
State v. Conner, Cuyahoga App. No. 84073, 2005-Ohio-1971, ¶57, citing State v. Jones
(Dec. 26, 1973), Franklin App. No. 73AP-338. This court went on to hold that
“approximately fifty pounds of marijuana was discovered in the two bags. A prudent person
could conclude that those narcotics were in his possession for the purpose of sale and not for
personal consumption.” Id. See, also, State v. Overton, Lucas App. No. L-07-1311,
2008-Ohio-4618, ¶18 (overruling a challenge to a drug trafficking conviction on manifest
weight grounds where “[t]he record shows that the quantity and packaging of the crack
cocaine concealed inside appellant’s closet was indicative of trafficking[ ]” without other
evidence of sale, transport, or preparation). The Conner case is indistinguishable from the
instant case.
Because the binding precedent of this court establishes that a perfectly reasonable
inference may be drawn that the quantity of drugs involved was indicative of drug trafficking,
I would affirm appellant’s convictions for drug trafficking.
I also agree with the majority that the school yard specification should not stand, but
only because the testimony adduced at trial was not sufficient to demonstrate its applicability.