State v. Ibrahim

[Cite as State v. Ibrahim, 2013-Ohio-983.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 12CA0048-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
IBRAHNIM IBRAHIM COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 08CR0433
DECISION AND JOURNAL ENTRY
Dated: March 18, 2013
CARR, Judge.
{¶1} Appellant Ibrahnim Ibrahim appeals his conviction for possession of drugs. This
Court reverses and remands.
I.
{¶2} In May 2008, Ibrahim, a resident of Maine, was riding in a van with four other
people when the van became disabled as a result of an accident. After the five occupants were
taken to the hospital, a trooper with the Ohio State Highway Patrol had the van towed from the
interstate to a nearby parking lot where he conducted an inventory search of the vehicle. The
search disclosed numerous small plastic bags of a dry, green plant-like material. Believing that
the leaves were not marijuana, but suspecting that they were another illegal substance, the
trooper collected the bags as evidence and mailed them to the crime lab for analysis. More than
four months later, the Grand Jury indicted Ibrahim on one count of possession of cathinone, a
Schedule I drug, a felony of the fifth degree. Although the prosecutor immediately requested the
2
issuance of a warrant upon indictment on Ibrahim at his last known address in Maine, Ibrahim
was not served with the indictment for approximately three years.
{¶3} Ibrahim pleaded not guilty at arraignment and the matter was tried to a jury. The
jury found Ibrahim guilty of the lone charge. Two weeks later, Ibrahim filed a motion for
acquittal pursuant to Crim.R. 29, arguing that the State failed to present sufficient evidence to
convict him and that the State violated his right to a speedy trial by failing to serve him with the
indictment for three years. The trial court continued sentencing to allow time for consideration
of the motion. Immediately prior to sentencing, the trial court denied Ibrahim’s motion for
acquittal and sentenced him to 48 days in jail, with credit for the 48 days he served. Ibrahim
timely appealed and raises two assignments of error for review. We consider the second
assignment of error first as it is dispositive of the appeal.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
MOTION TO ACQUIT UNDER CRIM.R. 29 AFTER THE STATE RESTED
ITS CASE BECAUSE THE EVIDENCE WAS INSUFFICIENT TO PROVE
THAT APPELLANT POSSESSED CATHINONE.
{¶4} Ibrahim argues that the trial court erred by denying his motion for acquittal
pursuant to Crim.R. 29 after the State rested. This Court agrees.
{¶5} Crim.R. 29 provides, in relevant part:
The court on motion of a defendant or on its own motion, after the evidence on
either side is closed, shall order the entry of a judgment of acquittal of one or
more offenses charged in the indictment, information, or complaint, if the
evidence is insufficient to sustain a conviction of such offense or offenses. The
court may not reserve ruling on a motion for judgment of acquittal made at the
close of the state’s case.
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
3
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. 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. Galloway, 9th Dist. No. 19752, 2001 WL 81257 (Jan. 31, 2001) quoting State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶6} The test for sufficiency requires a determination of whether the State has met its
burden of production at trial. State v. Walker, 9th Dist. No. 20559, 2001 WL 1581570 (Dec. 12,
2001); see, also, State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring).
{¶7} Ibrahim was convicted of possession of cathinone in violation of R.C.
2925.11(A)(C)(1)(a), which states, in relevant part: “No person shall knowingly obtain, possess,
or use a controlled substance * * *.” R.C. 2901.22(B) states that “[a] person acts knowingly,
regardless of his purpose, 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.”
{¶8} “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). R.C.
2901.21(D)(1) states that “[p]ossession is a voluntary act if the possessor knowingly procured or
received the thing possessed, or was aware of the possessor’s control of the thing possessed for a
sufficient time to have ended possession.” This Court has repeatedly held that “a person may
knowingly possess a substance or object through either actual or constructive possession.” State
v. See, 9th Dist. No. 08CA009511, 2009-Ohio-2787, ¶ 10, quoting State v. Hilton, 9th Dist. No.
21624, 2004-Ohio-1418, ¶ 16. “‘Constructive possession exists when an individual knowingly
4
exercises dominion and control over an object, even though that object may not be within his
immediate physical possession.’” State v. Reis, 9th Dist. No. 26237, 2012-Ohio-2482, ¶ 7,
quoting State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus. This Court continues to
recognize that “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.” (Internal quotations omitted) Reis at ¶ 7, quoting State v. Graves, 9th Dist. No.
08CA009397, 2011-Ohio-5997, ¶15, quoting State v. Ruby, 149 Ohio App.3d 541, 2002-Ohio-
5381, ¶ 30 (2d Dist.). Inherent in the notions of dominion and control is some authority over the
object, not merely the ability to have access to it. See R.C. 2925.01(K). 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. No. 22208, 2005-Ohio-1132, ¶8, citing
State v. Thomas, 9th Dist. No. 21251, 2003-Ohio-1479, ¶11. In addition, “[c]ircumstantial
evidence is itself sufficient to establish dominion and control over the controlled substance.”
Hilton at ¶16.
{¶9} A “controlled substance” is “a drug, compound, mixture, preparation, or
substance included in schedule I, II, III, IV, or V.” R.C. 3719.01(C). At the time relevant to this
matter, cathinone was classified as a Schedule I controlled substance. See former R.C. 3719.41
Schedule I (E)(2).
{¶10} The State presented the testimony of two witnesses.
{¶11} Trooper John Beeler of the Ohio State Highway Patrol testified that he responded
to a traffic accident on May 30, 2008, around 2:30 p.m., on interstate 71 involving a Honda
Odyssey van. The van was in the middle of the interstate and perpendicular to the roadway. The
five occupants of the van, including one woman and four men, were standing on the side of the
5
road. Trooper Beeler testified that one of the men, whom he could not identify as Ibrahim, was
frantic at the scene and asked to be able to retrieve his cell phone charger from the van. The
trooper found the request to retrieve a cell phone charger odd given that occupants of the van had
been injured in the crash. All five occupants were taken to the hospital and the disabled van was
towed from the roadway.
{¶12} Trooper Beeler began conducting an inventory search and noticed a lot of dry,
green plant-like material littered throughout the van “like confetti” on the seats, floorboards, in
cup holders, in the first and second passenger rows, and the “trunk” portion of the van.
Significantly, the trooper testified that the leaves inside the van were “worn into the vehicle[,]”
making it clear to him that “[i]t wasn’t freshly strewn about.” He found a suitcase pushed
underneath the third row of seats and a closed cardboard box in the trunk area of the van. When
Trooper Beeler opened the suitcase he found women’s clothing packed on top of 37 individually
packaged plastic bags of a dry, green plant-like material. When he opened the cardboard box, he
found women’s clothing on top of 24 individually packaged plastic bags full of the same plant-
like material. Finally, also in the trunk area, which he described as a “tub” that “sinks down” for
storage, the trooper found a white plastic shopping bag that contained a large, open zipper-style
plastic bag containing a similar plant-like material. Because of the manner in which the
packages had been concealed, Trooper Beeler believed that the packages contained drugs. He,
therefore, called his supervisor to help him identify the material.
{¶13} Trooper Beeler testified that he told his supervisor that the occupants of the van
were Somalis, and the supervisor surmised that the plant-like material was khat, a chewable leafy
green substance common in Somalia. Trooper Beeler admitted that no one at the scene told him
they were Somalis; rather, he testified that he knew they were Somalis “[j]ust by seeing and
6
speaking with them[.]” He testified that he then packaged the material found in the van as
evidence and mailed it to a crime lab in Columbus.
{¶14} Trooper Beeler testified that he went to the hospital and spoke with some of the
van’s occupants, although he could not remember whether he spoke with Ibrahim. He was able
to determine that the sole female occupant was the owner and driver of the van. He did not know
where Ibrahim had been sitting in the van. Although the trooper took witness statements from
some of the van’s occupants, he did not take a statement from Ibrahim. In fact, he conceded that
no one questioned Ibrahim from the time of the accident until the time of the indictment about
what he knew about the accident or the plant-like material. The trooper admitted, however, that
none of the other occupants implicated Ibrahim with having anything to do with the green plant-
like material. Moreover, he admitted that no one made any effort to determine to which
occupant the plant-like material belonged; rather, he just “assumed” that everyone inside the van
“possessed” it. He further admitted that there was no investigation to determine who might have
exercised dominion and control over the material. Trooper Beeler testified that Ibrahim was
never tested for drugs in his system, and he did not appear intoxicated at the scene.
{¶15} Trooper Beeler identified numerous photographs he took at the scene of the
outside and inside of the van. Although photographs showed dry, leafy material throughout the
van, the trooper was not able to testify to the areas of the van reflected in each picture. He could
identify some areas in the front seat and the recessed trunk area, but he was not able to
distinguish most areas depicted in the photographs. Trooper Beeler testified that the speed limit
on the interstate was 65 mph, and that he would expect that a collision at that speed would be a
violent event which would reasonably propel dry leaves throughout the van. He thought it was
significant that the cardboard box in the recessed trunk area had remained upright.
7
{¶16} Finally, Trooper Beeler testified that Abdi Aden, one of the other occupants in the
van, admitted that he knew there was plant-like material in the van and that some people had
been using it. Although Aden told him that two of the van’s occupants left the vehicle when they
stopped in Buffalo, New York, on their way from Maine to Columbus, Aden did not identify
either person and did not explained what the people might have been doing.
{¶17} Brandon Werry is the director at the Ohio State Highway Patrol Crime Lab in
Columbus. He testified that his primary responsibility is to review the casework by analysts at
the lab for accuracy. He testified that he analyzed the evidence Trooper Beeler sent in this case,
and that he has analyzed substances for the presence of cathinone on approximately twelve prior
occasions. He testified that cathinone is a Schedule I drug1 found in the khat plant, a shrub
native to Eastern Africa and the Middle East. Although Ohio law banned the possession of
cathinone at the time, Mr. Werry testified that possession of the khat plant is not illegal. He
testified that the leaves are chewed for its stimulant properties. Mr. Werry explained that, once
cut, the cathinone in khat rapidly degrades within 24-48 hours into cathine, a Schedule IV
stimulant, unless it is dried to halt the chemical conversion.
{¶18} Mr. Werry testified that he bundled the 62 bags of green plant material he
received from Trooper Beeler into groups of 8, 8, 8, 8, 7, 6, 6, 6, 4, and 1 bags for testing. He
testified that the items he received for testing contained both cathinone and cathine. He received
1
On December 20, 2012, Sub. H.B. No. 334 went into effect, amending R.C. 3719.41, which
lists the Schedules of controlled substances, and deleting cathinone as a Schedule I stimulant.
The legislation added a new category of Schedule I stimulants called “Substituted cathinones.”
On March 13, 2013, R.C. 3719.41 was again amended. Cathinone is not listed as a Schedule I
stimulant, although “Substituted cathinones” comprise a lengthy category. R.C. 3719.41
Schedule I (E)(7)(a)-(d).
8
only the plastic bags found in the suitcase, cardboard box, and white shopping bag. He did not
receive for testing any of the loose leaves that Trooper Beeler saw throughout the van. Mr.
Werry testified that one cannot tell simply by looking at the leaves whether they contain
cathinone. Because of the rapid degradation process, he testified that the leaves must be
analyzed to determine whether they contain cathinone.
{¶19} Finally, Mr. Werry testified that, although fingerprints were taken from the plastic
bags found in the van, he did not conduct any fingerprint analysis.
{¶20} When the State first rested, it had presented no evidence that Ibrahim knowingly
possessed cathinone. There was no evidence that Ibrahim had any leaves on his person or that he
was tested for the presence of drugs in his system. Trooper Beeler admitted that Ibrahim did not
appear intoxicated at the scene.
{¶21} The State argues that Ibrahim constructively possessed cathinone because he was
in the van where dry, green plant-like material tested positive for the presence of cathinone, and
he was capable of exercising dominion and control over the drug. The evidence presented by the
State, however, indicated that 61 of the 62 bags of leaves found to contain cathinone were found
in either a closed suitcase or closed cardboard box, both of which otherwise contained only
women’s clothing. The owner and driver of the van was a woman. The State presented no
evidence to link Ibrahim to the suitcase or cardboard box. It is unreasonable to infer that he
would have had any authority to open closed containers containing only the female occupant’s
personal items.
{¶22} Moreover, although the trooper found an open plastic bag of leaves inside a
shopping bag, he found it in the recessed “tub” portion of the van’s trunk. The State did not
present any evidence to show where Ibrahim was sitting in the van. Although cathinone was
9
present in a usable form in the van, the State failed to present evidence that it was in close
proximity to Ibrahim or that he could access it. Furthermore, mere access to the bag was not
enough to establish dominion and control. While it may be reasonable to infer that this one bag
of leaves was open to allow for its use in the van by those who knew it was there and had
authority to use the leaves, there was no evidence that Ibrahim knew of the bag’s presence, could
reach it, or that he had any authority to use the leaves.
{¶23} Although there were remnants of leaves throughout the van, indicating their one-
time use, Trooper Beeler testified that they were “worn into the vehicle,” and it was clear that
they “[weren’t] freshly strewn about,” giving rise to the reasonable inference that the leaves had
not recently been chewed, further failing to show that Ibrahim had any ability to exercise
dominion and control over the cathinone. Moreover, Ibrahim was not tested for drugs in his
system and Trooper Beeler testified that he did not appear intoxicated. Accordingly, Ibrahim’s
constructive possession of cathinone cannot be inferred merely from the presence of the drug in a
usable form in a recessed area of the van and in the absence of evidence of Ibrahim’s authority
over the drug’s use or the distribution of those leaves to anyone in the van. Moreover, no one
questioned Ibrahim regarding the cathinone, and no other occupant of the van linked Ibrahim to
the cathinone. Because the State failed to present evidence that Ibrahim had constructive
possession, i.e., any ability or authority to exercise dominion and control, of any cathinone found
in the van, there was insufficient evidence to take the case to the trier of fact. Accordingly, the
trial court erred when it denied Ibrahim’s motion for judgment of acquittal pursuant to Crim.R.
29. Ibrahim’s second assignment of error is sustained.
10
ASSIGNMENT OF ERROR I
THE POST-INDICTMENT DELAY BY THE STATE TO ARREST
APPELLANT AND SERVE HIM WITH THE INDICTMENT VIOLATED HIS
RIGHT TO SPEEDY TRIAL UNDER THE SIXTH AMENDMENT OF THE
UNITED STATES CONSTITUTION.
{¶24} Ibrahim argues that the State’s three-year delay in serving him with the indictment
violated his right to speedy trial. Based on our resolution of the second assignment of error,
Ibrahim’s first assignment of error is moot and we decline to address it. See App.R. 12(A)(1)(c).
III.
{¶25} Ibrahim’s second assignment of error is sustained. We decline to address his first
assignment of error. The judgment of the Medina County Court of Common Pleas is reversed
and the cause remanded for the trial court to vacate Ibrahim’s conviction for possession of
cathinone.
Judgment reversed,
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 Medina, 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.
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
11
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 to Appellee.
DONNA J. CARR
FOR THE COURT
MOORE, P. J.
BELFANCE, J.
CONCUR.
APPEARANCES:
STEPHEN P. HANUDEL, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.