State v. Shelby , 2019 Ohio 1564 ( 2019 )

[Cite as State v. Shelby, 2019-Ohio-1564.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-17-056
Appellee Trial Court No. 15 CR 453
v.
Quentrell Shelby DECISION AND JUDGMENT
Appellant Decided: April 26, 2019
*****
Paul A. Dobson, Wood County Prosecuting Attorney, David T.
Harold and Jim A. Hoppenjans, Assistant Prosecuting Attorneys,
for appellee.
Lawrence A. Gold, for appellant.
*****
OSOWIK, J.
Introduction
{¶ 1} This case concerns a large quantity of prescription drugs found in a vehicle
after it was stopped by the Ohio State Highway Patrol, along I-75 in Wood County. One
of the car’s occupants, appellant Quentrell Shelby, was asleep in the backseat at the time
of the stop and was observed by a state trooper to be holding a plastic bag full of drugs.
Following a jury trial in the Wood County Court of Common Pleas, appellant was
convicted of drug possession, drug trafficking and possession of criminal tools and
sentenced to four years in prison. On appeal, appellant argues that the trial court erred in
failing to give a particular jury instruction to account for the fact that appellant was
asleep at the time he was seen holding the bag. He also argues that his convictions were
not supported by legally sufficient evidence and were against the manifest weight of the
evidence. For the reasons that follow, we affirm the judgment and sentence.
Facts and Procedural History
{¶ 2} The following evidence was offered at trial. In the early morning hours of
October 22, 2015, Ohio State Highway Patrol Trooper Anthony Martin was on patrol on
Interstate 75. Around 3:25 a.m., while stopped in the median of the southbound lane near
Wales Road in Wood County, Trooper Martin observed a red Jeep Cherokee speeding.
As the Jeep passed the trooper’s vehicle, the trooper observed the Jeep change lanes and
“then slowed substantially under the speed limit,” both of which Trooper Martin knew to
be “potential criminal indicators.” Trooper Martin activated his lights and initiated a
traffic stop. Trooper Martin approached the passenger-side of the Jeep where he
observed a male driver (later identified as Curtis Lee Britton III), a female passenger in
the front seat (later identified as Layke Holmes) and another male in the back seat, who
appeared to be sleeping (appellant). The trooper observed additional criminal indicators
including the fact that the Jeep was a rental vehicle that was twelve days overdue to be
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returned and the person who rented the vehicle was not present. In addition, the driver
(Britton) parked in a haphazard manner with the blinker still activated, suggesting that he
was distracted. Trooper Martin also observed the strong presence of deodorizer
indicating an effort to mask another scent, an unusual amount of trash in the Jeep, and the
“overly nervous” behaviors of Britton and Holmes who were “visibly shaking” and
“avoiding eye contact” with him. As Trooper Martin was observing these factors,
appellant continued to sleep in the back seat.
{¶ 3} Trooper Martin suspected that the occupants of the car could be involved in
criminal activity, and he requested assistance from Trooper Stroud who was patrolling
the same area with a drug-sniffing dog. Evidence in the record established that illegal
drug activity along I-75 is common and that drugs are often transported from the Detroit
area to the southern states, and the money for those drugs then flows to the north. The
use of rental vehicles for the drug trade is also common.
{¶ 4} When Trooper Stroud arrived, Trooper Martin was escorting the driver
(Britton) to Martin’s patrol car. Trooper Stroud approached the driver’s side of the
vehicle to advise the remaining occupants not to get out of the vehicle, while he and the
dog walked the perimeter of the Jeep so that the dog could conduct a “sniff.” Trooper
Stroud observed “a male in the backseat [who] appeared to be sleeping.” He testified,
“[a]s I looked around the vehicle, I noticed in [appellant’s] hands he was holding a plastic
bag. I could see plastic coming out of his right fist.” Although Trooper Stroud could not
see the contents of the bag in appellant’s “clenched” fist, he suspected that the bag was
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“drug packaging” which he has “seen over and over.” Trooper Stroud asked Holmes to
wake appellant, and he watched as Holmes turned to reach into the back seat. Trooper
Stroud testified that although he sensed Holmes’ deliberate attempt to obscure his view,
he did see her “push [appellant’s] right hand that was holding [the] bag * * * underneath
his body.” Appellant then “sat up,” and Trooper Stroud could see that appellant’s hands
were “now empty.” Stroud then directed appellant to sit “directly behind the driver’s
seat.” As appellant moved, the bag “sitting exactly underneath where he was just laying”
became visible.
{¶ 5} Trooper Martin returned to the Jeep, and he too “observed the pills” which
“were packaged inside of a bag knotted on the top.” The pills, a mixture of green
capsules and blue pills, were lying “on the back passenger seat” of the Jeep. The pills
were later tested in a police lab and identified as 138 oxycodone (blue) and 79
alprazolam, a.k.a. “Xanax” (green).
{¶ 6} After observing the pills, Trooper Martin escorted Holmes to his vehicle,
where she joined Britton. Appellant was taken to the other patrol car. Dashcam audio
from Martin’s patrol car recorded the conversation between Holmes and Britton, during
which Holmes can be heard saying, “[w]hen they pulled you out, I was sweatin the shit
out of him, and he was like ‘leave me alone,’” and “I didn’t know where they was at or I
would have grabbed them.”
{¶ 7} Holmes, who entered into a Cooperation Agreement with the state, testified
on behalf of the prosecution. Holmes testified that she had known appellant for about
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three months before their arrest and that the two had a “fling.” On three previous
occasions, appellant had asked Holmes to accompany him down to Tennessee,
presumably for “illegally-related” purposes, but she had always declined, until that night.
Soon after Holmes got into the Jeep, she fell asleep. She claimed to be “tipsy” from
alcohol and Xanax. She awoke when they picked up Britton, whom she did not know.
Once the trip resumed, with Britton driving and appellant in the back seat, she fell back to
sleep. Holmes testified, “[a]fter we picked [Britton] up, I dozed off for a moment.
[Appellant] woke me up and asked me to get in the back seat with him. I told him no.
Went back to sleep. And next thing you know, [appellant] was telling * * * [me to] hand
him some baggies, which I later recall I did. * * * I handed him some baggies and fell
back asleep. And then next thing you know, [we] got pulled over.” According to
Holmes, the baggies were in an unopened pack, which she described as “those like - -
Good Sense plastic bags.”
{¶ 8} Appellant testified in his own defense. He disputed the state’s case, that the
purpose of the trip was drug-related, and he specifically denied any knowledge that drugs
were in the vehicle that evening or how they wound up in his hand. He did not dispute
Trooper Stroud’s testimony that Stroud, in fact, observed a knotted plastic baggie in his
clenched right hand, but he added that, “I was asleep, sir, so I don’t know what [the
trooper] observed.”
{¶ 9} The Wood County Grand Jury indicted appellant on November 19, 2015 on
five criminal counts: “Aggravated Possession of Drugs,” in violation of R.C. 2925.11(A)
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and (C)(1)(c), a felony of the second degree (Count 1); “Aggravated Trafficking in
Drugs,” in violation of R.C. 2925.03(A)(2) and (C)(1)(d), a felony of the second degree
(Count 2); “Possession of Drugs,” in violation of R.C, 2925.11(A) and (C)(2)(b), a felony
of the fourth degree (Count 3); “Trafficking in Drugs,” in violation of R.C. 2925.03(A)(2)
and (C)(2)(c), a felony of the fourth degree (Count 4); and “Possessing of Criminal
Tools,” in violation of R.C. 2923.24(A) and (C), a felony of the fifth degree (Count 5).
{¶ 10} Following a two day jury trial beginning on July 25, 2017, appellant was
convicted on all counts. The state argued that Counts 1 and 2 were allied offenses of
similar import that merged for purposes of sentencing, as were Counts 3 and 4. The state
requested that the court sentence appellant as to Counts 2, 4 and 5. The court sentenced
appellant to a mandatory term of 4 years in prison as to Count 2; 12 months as to Count
4, and 12 months as to Count 5. The court ordered that the terms be served concurrently.
Appellant appealed, and through counsel, asserts three assignments of error for our
review:
FIRST ASSIGNMENT OF ERROR: The trial court erred in failing
to give a requested jury instruction regarding Appellant being asleep.
SECOND ASSIGNMENT OF ERROR: The trial court erred in
denying Appellant’s Rule 29 motion.
THIRD ASSIGNMENT OF ERROR: The jury’s verdict was against
the manifest weight of the evidence presented at trial.
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{¶ 11} In his first assignment of error, appellant argues that the trial court erred in
failing to provide the jury with Ohio Jury Instruction CR 417.07, entitled “Coma,
blackout.” The instruction provides,
1. DEFINED. Where a person commits an act while unconscious as
in a (coma) (blackout) (convulsion) due to (heart failure) (disease) (sleep)
(injury), such act is not a criminal offense even though it would be a crime
if such act were the product of a person’s (will) (volition).
2. CONCLUSION. If you have a reasonable doubt whether the
defendant was conscious at the time of such act, you must find that he is not
guilty. If you find that the defendant was conscious, such finding does not
relieve the state of its burden of establishing by the required weight of the
testimony (all elements of the crime charged) (any lesser included offense)
[that the act was (purposely) (knowingly) committed].
3. STATUTE. Reflexes, convulsions, body movements during
unconsciousness or sleep, and body movements that are not otherwise a
product of the actor's (will) (volition), are involuntary acts. R.C.
2901.21(C)(2).
{¶ 12} A trial court is “obligated to provide jury instructions that correctly and
completely state the law” when those instructions are “warranted by the evidence
presented in a case.” Cromer v. Children‘s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d
257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 22. The question of whether a jury instruction is
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legally correct and factually warranted is subject to de novo review. Id. We begin our
de novo review by examining the “blackout” affirmative defense. See, e.g., State v.
Ireland, Slip Opinion No. 2018-Ohio-4494, ¶ 1 (“[B]lackout is an affirmative defense
[and] requiring a defendant to provide this affirmative defense by a preponderance of the
evidence does not violate the defendant’s right to due process.”). A criminal defendant is
entitled to an instruction on an affirmative defense if he has introduced sufficient
evidence which, if believed, would raise a question in the minds of reasonable people
concerning the existence of the issue. State v. Keahey, 6th Dist. Erie No. E-13-009,
2014-Ohio-4729, ¶ 45, citing State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195(1978), paragraph one of syllabus.
{¶ 13} Appellant asserts that he was asleep at the time of the stop and remained
asleep “even when a baggie of pills was later seen in his hand.” He claims, therefore,
that the evidence established that he was “unconscious due to sleep” and that the “coma,
blackout” jury instruction should have been given.
{¶ 14} We disagree. At trial, appellant did not claim to have “commit[ed] an act
while unconscious * * * that would have been a crime if such act were the product” of his
“will” or “volition,” as set forth in Ohio Jury Instruction 417.07. (Emphasis added.) To
the contrary, appellant’s argument is that an act was committed upon him, namely the
planting of drugs in his hand by another. Because there are no facts to suggest that
appellant committed an involuntary act while unconscious, the sleep instruction does not
apply. “Only those instructions which are applicable to the facts of the case should be
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given.” State v. Herrell, 6th Dist. Lucas No. L-16-1173, 2017-Ohio-7109, ¶ 22.
Moreover, although discussed in greater detail in response to appellant’s second
assignment of error, we note that the trial court did include a jury instruction on the term
“knowingly” which reflected appellant’s defense in this case, i.e., that drugs were
unknowingly planted on his person for which he could not be held criminally liable.
{¶ 15} Based on the foregoing, we conclude that the trial court did not err by
refusing to provide the jury with the “Coma; blackout” jury instruction. Appellant’s first
assignment of error is not well-taken.
Sufficiency and Weight of the Evidence
{¶ 16} In appellant’s second assignment of error, he argues that his convictions for
drug possession and drug trafficking were based on insufficient evidence because the
state failed to prove that he knowingly possessed the drugs. In his third assignment of
error, he argues that the convictions are against the manifest weight of the evidence.
{¶ 17} A motion for acquittal under Crim.R. 29(A) challenges the sufficiency of
the evidence. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959,
¶ 39. The denial of a motion for acquittal under Crim.R. 29(A) “is governed by the same
standard as the one for determining whether a verdict is supported by sufficient
evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
Sufficiency of the evidence is a legal standard that tests whether the evidence introduced
at trial is legally sufficient to support a verdict. State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). We examine the evidence in the light most favorable to the
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state and decide whether any rational trier of fact could have found that the state proved,
beyond a reasonable doubt, all of the essential elements of the crime. State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), superseded by state constitutional amendment
on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997);
State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78.
{¶ 18} Whether the evidence is legally sufficient to sustain a verdict is a question
of law. Thompkins at 386. In determining whether a conviction is based on sufficient
evidence, an appellate court does not assess whether the evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction. See
Jenks at paragraph two of the syllabus; Yarbrough at ¶ 79 (noting that courts do not
evaluate witness credibility when reviewing a sufficiency of the evidence claim).
{¶ 19} “When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
‘thirteenth juror’ and disagrees with the fact finder's resolution of the conflicting
testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 25, quoting Thompkins. In determining whether a conviction is against the manifest
weight of the evidence, the appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses and
determine whether, in resolving any conflicts in the evidence, the jury clearly lost its way
and thereby created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial must be ordered. Thompkins at 387, citing State v. Martin, 20
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Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A conviction should be reversed
on manifest weight grounds only in the most “‘exceptional case in which the evidence
weighs heavily against the conviction.’” Thompkins at 387, quoting Martin at 175.
{¶ 20} Appellant argues that he was entitled to an acquittal as to his drug
possession and trafficking convictions because the state failed to present legally sufficient
evidence that he acted with the requisite mens rea. Appellant does not challenge the
sufficiency of the evidence as to his possession of criminal tools conviction under R.C.
2923.24.
{¶ 21} The drug possession and trafficking statutes both require the state to show
that appellant acted “knowingly.” That is, R.C. 2925.11(A) provides that “[n]o person
shall knowingly obtain, possess, or use a controlled substance or a controlled substance
analog.” Likewise, 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 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.”
{¶ 22} R.C. 2901.22(B) defines “knowingly” as follows:
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
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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.
{¶ 23} R.C. 2925.01(K) defines “possession” as “having control over a thing or
substance” but 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.”
{¶ 24} A court must look at all of the attendant facts and circumstances in order to
determine if a defendant knowingly possessed a controlled substance. State v. Valiente-
Mendoza, 6th Dist. Wood No. WD-16-067, 2018-Ohio-3090, ¶ 64, citing State v. Pippen,
8th Dist. Cuyahoga No. 81630, 2003-Ohio-1736, ¶ 8. Moreover, possession may be
actual or constructive. State v. Fykes, 6th Dist. Wood No. WD-07-072, 2009-Ohio-2926,
¶ 36, citing State v. Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633,
¶ 13 (4th Dist.). Actual possession occurs when the defendant has the items within his
immediate physical control, whereas constructive possession occurs when the defendant
is able to exercise dominion and control over an item, even if the individual does not
have the item within his immediate physical possession. Id. “In order for constructive
possession to exist, there must be evidence demonstrating that the defendant was
conscious of the presence of the object. Although a defendant’s mere proximity to an
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item is in itself insufficient to establish constructive possession, proximity to the item
may constitute some evidence of constructive possession.” Id.{¶ 25} With the above framework in mind, we turn to appellant’s argument that,
“by being asleep,” it could not be shown that he knowingly possessed and trafficked in
drugs. Appellant “maintains that he had no knowledge of the pills being in the vehicle,
much less in his own hands” and that “without knowledge of the pills [he] could not
possess or traffic in said pills.”
{¶ 26} Notwithstanding that appellant may have been asleep at the time drugs
were discovered, evidence was offered at trial that, if believed, established his
constructive, if not actual possession. Indeed, Trooper Martin testified to multiple
criminal indicators, and Holmes verified that she assumed the trip was for an illegal
purpose. Importantly, appellant asked Holmes to pass him plastic baggies, which are
commonly used to package drugs. Such evidence, combined with the fact that appellant
was seen in close proximity to the drugs (whether in his hand, underneath his torso, or
lying on the back seat) establishes that appellant was conscious of the presence of drugs.
Therefore, it may be said that appellant knowingly possessed them for purposes of
satisfying the state’s burden to present legally sufficient evidence in support of the drug
possession and drug trafficking convictions. Accord State v. Williamson, 2d Dist.
Montgomery No. 27147, 2017-Ohio-7098, ¶ 58 (Ample evidence supported conclusion
that defendant knowingly possessed heroin and cocaine where police discovered bag of
heroin capsules “sitting on the passenger seat of the car” and found an additional baggie
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of cocaine “in the middle console of the car, in the ashtray, just below the radio [both of
which] would have been easily accessible to the driver.”).
{¶ 27} Moreover, appellant’s argument—that either Britton or Holmes “could
have placed” the drugs into his hand—speaks to the weight, not the sufficiency of the
evidence. In reviewing a sufficiency argument, we examine the evidence in the light
most favorable to the state. Based upon the evidence described above, we find that a
rational trier of fact could have found that appellant was conscious of the drugs inside the
Jeep. Thus, we find that there was sufficient evidence that appellant knowingly
possessed and trafficked in drugs.
{¶ 28} Appellant also argues that his convictions are against the manifest weight
of the evidence. According to appellant, his night began about 8:00 p.m. in Pontiac,
Michigan, at a friend’s house, where he got drunk on tequila and smoked marijuana.
Around 10:00 p.m., appellant asked if he could borrow the friend’s car, that had been
rented by someone else, to go buy a pack of cigarettes. The friend asked appellant to
pick up a woman, Layke Holmes, while he was out. After picking up Holmes, whom
appellant claimed never to have met, and buying cigarettes, appellant received a call from
Britton, who “sounded sad” about a “family emergency” in “Tennessee.” At trial, when
asked, “[w]hat would make you want to take a friend’s car, leave in the middle of the
night while drunk, and go across state lines with a girl you didn’t know,” appellant
replied that it was a “spur of the moment thing * * * to help out a friend who was in
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need.” Appellant also said that he did not really “think about all that stuff,” like where in
Tennessee they were going or whether he even had enough money to make the trip.
{¶ 29} Appellant argues that his version of events was more plausible than
Holmes’ whom he described as a “drug addict” who did not even know his “real name.”
A conviction is not against the manifest weight of the evidence, however, merely because
the jury believed the prosecution testimony.” State v. Dean, 6th Dist. Lucas No.
L-16-1301, 2018-Ohio-1740, ¶ 44, quoting State v. Houston, 10th Dist. Franklin No.
04AP-875, 2005-Ohio-4249, ¶ 38 (reversed and remanded in part on other grounds). We
find that this is not an exceptional case in which 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, and we further find that the jury’s verdict was not against the manifest weight of
the evidence. Appellant’s second and third assignments of error are not well-taken.
Conclusion
{¶ 30} For the foregoing reasons, the judgment of the Wood County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
15.
State v. Shelby
C.A. No. WD-17-056
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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