State v. Pari , 2017 Ohio 4165 ( 2017 )

[Cite as State v. Pari, 2017-Ohio-4165.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28098
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ROBERT G. PARI COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2015 05 1626(A)
DECISION AND JOURNAL ENTRY
Dated: June 7, 2017
CALLAHAN, Judge.
{¶1} Appellant, Robert Pari, appeals his conviction and sentence from the Summit
County Court of Common Pleas. This Court affirms in part and reverses in part.
I.
{¶2} Mr. Pari was arrested and charged with aggravated possession of drugs and
possessing drug abuse instruments. The case proceeded to trial and a jury found Mr. Pari guilty of
both offenses. The trial court sentenced Mr. Pari to a twenty-four-month period of community
control and verbally advised him he could be sentenced to up to twelve months in prison if he
violated his community control. Mr. Pari now appeals, raising four assignments of error, which
have been reordered for discussion.
2
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN DENYING RULE 29(A) ACQUITTAL AS
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE
VERDICTS[.]
{¶3} In his first assignment of error, Mr. Pari argues the trial court erred when it
overruled his Crim.R. 29 motion for acquittal and submitted the case to the jury for deliberations
when there was insufficient evidence to do so. This Court disagrees.
{¶4} Whether the evidence in a case is legally sufficient to sustain a conviction is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “In essence, sufficiency is a
test of adequacy.” Id. This Court reviews questions of law under a de novo standard. State v.
Trifari, 9th Dist. Medina No. 08CA0043–M, 2009-Ohio-667, ¶ 12.
{¶5} “An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to determine whether
such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “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.” Id.{¶6} Mr. Pari contends, even viewing the evidence in a light most favorable to the
prosecution, no rational trier of fact could have found the essential element of possession as to
either offense. Mr. Pari does not challenge the other elements of the offenses. Mr. Pari argues the
officer had no personal knowledge that the contraband belonged to him and points out the
difference between the arresting officer’s police report and his trial testimony. As to the latter
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argument, this Court notes that the credibility of a witness is properly addressed under a manifest
weight of the evidence analysis, and is done so below.
{¶7} The offense of aggravated possession of drugs is committed when a defendant
knowingly obtains, possesses, or uses a Schedule I or II controlled substance. R.C. 2925.11(A)
and (C)(1).
{¶8} The offense of possessing drug abuse instruments is committed when a defendant
“knowingly * * * possess[es], or use[s] any instrument, article, or thing the customary and
primary purpose of which is for the administration or use of a dangerous drug, * * *, when the
instrument involved is a hypodermic or syringe, * * *, and the instrument, * * * involved has been
used by the offender to unlawfully administer or use a dangerous drug, * * *, or to prepare a
dangerous drug, * * *, for unlawful administration or use.” R.C. 2925.12(A).
{¶9} Possession or possess “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). “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.” R.C.
2901.22(B).
{¶10} It is well settled that “‘a person may knowingly possess a substance or object
through either actual or constructive possession.’” State v. See, 9th Dist. Lorain No. 08CA009511,
2009-Ohio-2787, ¶ 10, quoting State v. Hilton, 9th Dist. Summit No. 21624, 2004-Ohio-1418, ¶
16. “‘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
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possession.’” State v. Reis, 9th Dist. Summit No. 26237, 2012-Ohio-2482, ¶ 7, quoting State v.
Kendall, 9th Dist. Summit No. 25721, 2012-Ohio-1172, ¶ 14, quoting State v. Hankerson, 70
Ohio St.2d 87 (1982), syllabus. As this Court recognizes, “‘[t]he crucial issue is not whether the
accused had actual physical contact with the article concerned, but whether the accused was
capable of exercising dominion [and] control over it.’” Reis at ¶ 7, quoting State v. Graves, 9th
Dist. Lorain No. 08CA009397, 2011-Ohio-5997, ¶ 15, quoting State v. Ruby, 149 Ohio App.3d
541, 2002-Ohio-5381, ¶ 30 (2d Dist.). Nevertheless, “constructive possession may be inferred
from the drugs’ presence in a usable form and in close proximity to the defendant.” State v.
Figueroa, 9th Dist. Summit No. 22208, 2005-Ohio-1132, ¶ 8, citing State v. Thomas, 9th Dist.
Summit No. 21251, 2003-Ohio-1479, ¶ 11. “Circumstantial evidence is itself sufficient to
establish dominion and control over the controlled substance.” Hilton at ¶ 16.
{¶11} On May 18, 2015, Trooper Neil Laughlin effected a traffic stop on a pickup truck
in which Mr. Pari was the front seat passenger. Mr. Pari and the driver were both nervous and
acting fidgety. According to the trooper, Mr. Pari’s nervousness was extreme and, in his
experience, consistent with people who have something to hide or are engaged in some type of
criminal activity. A subsequent search of the interior of the vehicle revealed a purse in the center
of the bench seat which contained female items as well as hydromorphone pills and two loaded
syringes. In the bed of the truck, directly behind the passenger seat, was a black leather fanny
pack containing motorcycle goggles, a cell phone charger, a Trojan condom, rolling papers, a
syringe, a finger of a latex glove which contained 24 hydromorphone pills and another piece of
rubber which contained cathinone (bath salts). The truck was registered to Mr. Pari. The female
driver took ownership of the purse and its contents and told Trooper Laughlin the fanny pack and
its contents belonged to Mr. Pari.
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{¶12} Trooper Laughlin compared the lot number and expiration date of the condom in
the fanny pack to two condoms that were found in Mr. Pari’s pocket during a pat down search and
found them to be identical. He later researched the Trojan web site and learned that each box of
condoms has its own lot number, and concluded that the three condoms came from the same box.
According to the trooper, Mr. Pari did not want the driver to know he had condoms. The trooper
plugged the phone charger that was in the fanny pack into Mr. Pari’s flip phone and found that it
fit the phone. Mr. Pari told the trooper he had driven a motorcycle earlier that day but he did not
take ownership of the goggles.
{¶13} Mr. Pari’s charges were based solely on the items found in the fanny pack and not
on any of the contraband found in the purse.
{¶14} Based upon the statement of the driver, Mr. Pari’s nervous demeanor, the
location of the fanny pack in proximity to Mr. Pari, the fact that the truck was registered to Mr.
Pari, the nature of the items contained within the fanny pack, the trooper’s subsequent follow-up
regarding the condoms and the phone charger, and Mr. Pari’s admission that he rode a motorcycle
earlier that day, applying the definitions set forth above and viewing the evidence in a light most
favorable to the prosecution, any rational finder of fact could have found beyond a reasonable
doubt that the fanny pack and its contents belonged to Mr. Pari, and that Mr. Pari knew the fanny
pack was behind him in the bed of the truck and was aware of its contents. Furthermore, although
the fanny pack was not on Mr. Pari’s person or immediately near him, any rational finder of fact
could have found beyond a reasonable doubt that Mr. Pari constructively possessed the fanny
pack and its contents and that he exercised dominion and control over the items. Accordingly, this
Court concludes that Mr. Pari’s convictions are supported by sufficient evidence.
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{¶15} Mr. Pari’s reliance on State v. Delrossi, 9th Dist. Summit No. 26943, 2014-Ohio-
4457, is misplaced. In that case, this Court focused on the date in the indictment and found that
the evidence put forth by the State did not sufficiently point to defendant’s involvement during
that time period. Id. at ¶ 24-26. No such issue exists here. Accordingly, Mr. Pari’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR THREE
THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE[.]
{¶16} In his third assignment of error, Mr. Pari argues the manifest weight of the
evidence does not support his convictions. This Court disagrees. Again, Mr. Pari only challenges
the element of possession.
{¶17} This Court has explained that
[i]n determining whether a conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses and
determine whether, in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence concerns
whether a greater amount of credible evidence supports one side of the issue more than it supports
the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis
that the conviction was against the manifest weight of the evidence, “the appellate court sits as a
‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Id.,
quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court should only exercise its
power to reverse a judgment as against the manifest weight of the evidence in exceptional cases in
which the evidence weighs heavily against the conviction. Otten at 340.
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{¶18} A thorough review of the record indicates that this is not the exceptional case
where the evidence weighs heavily in favor of Mr. Pari. Based upon the testimony recounted
above, there were significant indicia of his ownership of the fanny pack and the items within. The
trooper was the sole witness presented during the trial. During cross-examination trial counsel
attempted to discredit the State’s theory by challenging the trooper’s failure to check if the phone
charger fit into the driver’s phone, and by pointing out that the size of the waist strap on the fanny
pack was more consistent with being worn by a female. Counsel also elicited that most persons
stopped by the trooper display some level of nervousness and that Mr. Pari did not identify the
goggles as belonging to him, but merely said they looked like a pair he owns. Counsel challenged
the credibility of the trooper by pointing out facts to which he testified that were not contained in
his report, most importantly, the exact words used by the driver to incriminate Mr. Pari. Counsel
offered the theory that the contraband in the fanny pack belonged to the driver.
{¶19} This Court recognizes that “the trier of fact is in the best position to determine the
credibility of witnesses and evaluate their testimony accordingly,” State v. Johnson, 9th Dist.
Summit No. 25161, 2010-Ohio-3296, ¶ 15, and will not overturn a conviction as being against the
manifest weight of the evidence simply because the trier of fact chose to believe the State’s
version of events over another version. State v. Tabassum, 9th Dist. Summit No. 25568, 2011-
Ohio-6790, ¶ 27.
{¶20} Having reviewed the record, this Court cannot say the jury clearly lost its way and
created a manifest miscarriage of justice in choosing the State’s version of the events. The weight
of the evidence supports the conclusion that Mr. Pari knowingly, constructively possessed the
drugs and the syringe contained within the fanny pack.
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{¶21} Accordingly, Mr. Pari’s convictions for aggravated possession of drugs and
possessing drug abuse instruments are not against the manifest weight of the evidence. The third
assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN GIVING A MISLEADING AND
PREJUDICIAL JURY INSTRUCTION ON CONSTRUCTIVE
POSSESSION[.]
{¶22} In his second assignment of error, Mr. Pari contends the trial court erred in giving
a misleading, prejudicial jury instruction on constructive possession. Although a timely objection
to the constructive possession jury instruction was made, trial counsel offered no alternative
instruction. Mr. Pari contends the constructive possession instruction should not have been given
and that the instruction that was given was misleading.
{¶23} Mr. Pari advances several arguments in support of his position. First, he argues
the instruction should not have been given “in the narrow facts of this case.” (Emphasis deleted.)
Next, Mr. Pari argues the instruction was confusing and prejudicial because the concept of
authority over the object was not addressed in the charge. Finally, Mr. Pari argues the
constructive possession instruction “is dangerous from a policy perspective” in that a defendant
who is near drugs, but not aware of the drugs’ presence, could be found guilty. This Court
disagrees.
{¶24} “A trial court has broad discretion to decide how to fashion jury instructions, but
it must ‘fully and completely give the jury all instructions which are relevant and necessary for
the jury to weigh the evidence and discharge its duty as the fact finder.’” State v. White, 142 Ohio
St.3d 277, 2015-Ohio-492, ¶ 46, quoting State v. Comen, 50 Ohio St.3d 206 (1990), paragraph
two of the syllabus. In line with this requirement, jury instructions must “present a correct,
9
pertinent statement of the law that is appropriate to the facts.” White at ¶ 46, citing State v.
Griffin, 141 Ohio St.3d 392, 2014-Ohio-4767, ¶ 5 and State v. Lessin, 67 Ohio St.3d 487, 493
(1993). When, as here, a timely objection to the inclusion of the jury instruction was made, this
Court reviews whether the challenged jury instruction complied with this requirement by applying
an abuse of discretion standard. See State v. Norris, 9th Dist. Lorain No. 14CA010699, 2015-
Ohio-5180, ¶ 25. An abuse of discretion is more than an error of judgment; it implies that the trial
court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not simply
substitute its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d
619, 621 (1993).
{¶25} As to Mr. Pari’s first argument, he does not identify the “narrow facts” to which
he refers, but seems to suggest the fact that the State presented only one witness. However, the
jury was clearly instructed that they were not required to believe any witness simply because he
was under oath and that they could believe all or part or none of the testimony of a witness. As
previously stated, this Court recognizes that “the trier of fact is in the best position to determine
the credibility of witnesses and evaluate their testimony accordingly.” Johnson, 2010-Ohio-3296,
¶ 15.
{¶26} Mr. Pari relies on R.C. 2925.01(K) in support of his assertion that inherent in the
notions of dominion and control is some authority over the objects, not merely the ability to
access it. Therefore, the instruction should have included the concept of authority.
{¶27} In its entirety, R.C. 2925.01(K) states: “‘Possess’ or ‘possession’ means having
control over a thing or substance, but may not be inferred solely from mere access to the thing or
10
substance through ownership or occupation of the premises upon which the thing or substance is
found.” The word “authority” does not appear in this section.
{¶28} The trial court gave the following instruction on constructive possession:
A person may knowingly possess a substance or object through either actual or
constructive possession. Constructive possession exists when an individual
exercises dominion and control over an object, even though that object may not be
within his immediate possession. Circumstantial evidence is sufficient to support
the elements of constructive possession. Some facts standing alone, such as
access to drugs, are insufficient to establish constructive possession on their own,
but when viewed together, these factors may constitute circumstantial evidence
that demonstrates constructive possession. The crucial issue is not whether the
accused had actual physical contact with the article concerned, but whether the
accused was capable of exercising dominion and control over it.
(Emphasis added.)
{¶29} A review of the record and the instruction given by the trial court shows that the
constructive possession instruction was a correct statement of the law and applicable to the facts
of this case. Further, Mr. Pari’s argument ignores the necessary element of knowingly and the
court’s instruction as to that term. “It is presumed that the jury will follow the court’s
instructions.” State v. Manor, 9th Dist. Summit No. 14376, 1990 WL 73651, *1 (May 30, 1990).
{¶30} As to Mr. Pari’s policy argument, he provides no appellate rule or case law
suggesting that this Court is permitted to conduct a such review. “If an argument exists that can
support this assignment of error, it is not this court’s duty to root it out.” Cardone v. Cardone, 9th
Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998).
{¶31} Mr. Pari’s second assignment of error is overruled.
ASSIGNMENT OF ERROR FOUR
THE TRIAL COURT ERRED BY IMPOSING ONE SENTENCE OF
COMMUNITY CONTROL FOR MULTIPLE CONVICTIONS; THE
SENTENCE IS CONTRARY TO LAW.
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{¶32} In his fourth assignment of error, Mr. Pari contends the trial court’s sentence is
contrary to law. This Court agrees.
{¶33} Initially, this Court notes that the State filed a Motion to Dismiss or for Remand
early in the appeal process based upon the absence of a misdemeanor sentence in the sentencing
journal entry. This Court denied the State’s motion, citing State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, ¶ 14, but left open the possibility that the issue may be revisited upon the final
disposition of the appeal.
{¶34} This Court has consistently held that “‘a Journal Entry must dispose of all charges
brought in a single case against a defendant in order to be final.’” State v. Abel, 9th Dist. Lorain
No. 08CA009310, 2008-Ohio-4938, ¶ 8, quoting State v. Goodwin, 9th Dist. Summit No. 23337,
2007-Ohio-2343, ¶ 13. The facts of this case suggest that during the sentencing hearing the trial
judge actually imposed a sentencing-package of a single community control sentence for both the
felony and the misdemeanor charges. Although the trial judge did not impose a jail sentence for
the misdemeanor conviction, when asked by the prosecutor if any time was going to be
suspended, the trial judge said, “I sentenced him to community control so if he screws up he
comes back and gets sentenced.” Because there is technically a sentence for each count, the
judgment entry is a final, appealable order.
{¶35} Nonetheless, the Ohio Supreme Court has held it is error to impose a sentencing-
package on multiple counts. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 9-10; see
State v. Hopson, 9th Dist. Summit Nos. 28207, 28208, 28209, 28210, 28211, 2017-Ohio-2637, ¶
10. Under Ohio law, a “judge lacks the authority to consider the offenses as a group and to
impose only an omnibus sentence for the group of offenses.” Saxon at ¶ 9. Instead, the judge
“must consider each offense individually and impose a separate sentence for each offense.” Id.12
{¶36} In reviewing a felony sentence, “[t]he appellate court’s standard for review is not
whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court
may vacate or modify a felony sentence on appeal only if it determines by clear and convincing
evidence” that: (1) “the record does not support the trial court’s findings under relevant statutes”
or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, ¶ 1. Clear and convincing evidence is that “which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford,
161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶37} During the sentencing hearing the trial judge said “the court is going to sentence
Mr. Pari to a term of two years of community control * * *.” After discussing several other
matters the trial judge went on to state, “If you violate probation, the court could impose a more
serious sanction including sending you to prison for up to 12 months on your felony of the fifth
degree, aggravated possession of drug charge.” (Emphasis added.)
{¶38} The sentencing journal entry filed on December 31, 2015 orders “that the
Defendant be sentenced to twelve (12) months of incarceration, suspended, upon the condition
that the Defendant complete 2 years of community control.” The only reference to the
misdemeanor offense of possessing drug abuse instruments is the guilty plea.1
{¶39} Pursuant to R.C. 2929.19(B)(4) a trial court sentencing an offender to a
community control sanction “shall indicate the specific prison term that may be imposed as a
sanction for the violation” at the time of the sentencing. Pursuant to R.C. 2929.15(B)(3) if a court
imposes a prison term after an offender violates community control the prison term “shall not
1
The sentencing journal entry also states Mr. Pari’s “plea was accepted.” While Mr. Pari did not
raise this issue and this Court finds any error harmless, the entry should be corrected to reflect
language consistent with a jury trial.
13
exceed the prison term specified in the notice provided * * * at the sentencing hearing.” The fact
that the journal entry stated Mr. Pari would be sentenced to “twelve (12) months of incarceration,
suspended” was not adequate to put him on notice for the purposes of R.C. 2929.19(B)(4). The
requirement of a statutorily defined notification upon sentencing of an offender to a community
control sanction is not satisfied by notification given in the trial court’s journal entry issued after
sentencing. State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 15, 18.
{¶40} The felony sentence in this matter is clearly and convincingly contrary to law.
Additionally, the imposition of the sentencing-package on the felony and misdemeanor is error.
For both of these reasons, the matter must be remanded for resentencing. Because this decision is
dispositive, this Court need not address Mr. Pari’s R.C. 2929.12 argument. Mr. Pari’s fourth
assignment of error is sustained.
III.
{¶41} Mr. Pari’s first, second, and third assignments of error are overruled. Mr. Pari’s
fourth assignment of error is sustained. The judgment of the Summit County Court of Common
Pleas is affirmed in part, reversed in part, and the cause is remanded for the limited purpose of
resentencing.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
MARK H. LUDWIG, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.