State v. Johnson

[Cite as State v. Johnson, 2014-Ohio-4032.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
STATE OF OHIO, : Case No. 13CA16
:
Plaintiff-Appellee, :
:
vs. :
: DECISION AND JUDGMENT
VICKEY J. JOHNSON : ENTRY
:
Defendant-Appellant. : Released: 09/10/14
_____________________________________________________________
APPEARANCES:
Timothy P. Gleeson, Logan, Ohio, for Appellant.
Adam R. Salisbury, Gallipolis City Solicitor, Gallipolis, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Vickey J. Johnson (Appellant), appeals her conviction for
possession of drugs, in violation of R.C. 2925.11(A)/(C)(2)(a) after a bench
trial in the Gallipolis Municipal Court. Appellant’s counsel has advised this
Court that, after reviewing the record, he cannot find a meritorious claim for
appeal. As a result, Appellant’s counsel has moved to withdraw under
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). We find no merit
to Appellant’s two assignments of error and, after independently reviewing
the record, find no additional error prejudicial to the Appellant’s rights in the
trial court proceedings. The motion of counsel for Appellant requesting to
Gallia App. No. 13CA16 2
withdraw as counsel is granted, and this consolidated appeal is dismissed for
the reason that it is wholly frivolous.
FACTS
{¶2} On October 2, 2013, Appellant was found guilty of possession
of drugs, in violation of R.C. 2925.11(A)/(C)(2)(a), after a bench trial in the
Gallipolis Municipal Court. The charge arose from an incident which
occurred on June 15, 2013. On that date, Trooper Wilson of the Ohio State
Highway Patrol noticed a disabled vehicle on U.S. Route 35 in Gallia
County, Ohio. After running the license plate registration through dispatch,
Trooper Wilson was advised Appellant, the registered owner of the vehicle,
had an outstanding misdemeanor warrant in Gallia County.
{¶3} Trooper Wilson approached the disabled vehicle and arrested
Appellant on the misdemeanor warrant. He asked Appellant if she wanted to
take her purse with her and Appellant assented. Trooper Wilson eventually
searched inside and found half a Hydrocodone tablet.1 Appellant indicated
the purse belonged to her daughter, Angela Massey, and denied knowing a
pill bottle was in the purse. Nevertheless, Appellant was charged with
possession of drugs, a misdemeanor of the first degree.
1
The record is not entirely clear but it appears the search was consensual. Appellant has raised no issue in
this regard.
Gallia App. No. 13CA16 3
{¶4} Appellant was arraigned on June 17, 2013, and entered a not
guilty plea. She was appointed legal counsel and eventually proceeded to a
bench trial, wherein Appellant and Trooper Wilson were the only testifying
witnesses. The trial court found Appellant had constructive possession of
the purse and found her guilty.
{¶5} Appellant was sentenced to one year of probation (community
control), a $100.00 fine, and a six-month driver’s license suspension. She
was also ordered to pay court costs and a supervision fee. Appellant now
appeals the conviction and November 6, 2013 sentencing order.
{¶6} This appeal is timely filed. We have allowed Appellant
sufficient time to respond to counsel’s brief. To date, no response has been
received.
A. FINAL APPEALABLE ORDER
{¶7} Our review pursuant to Anders requires a full examination of the
trial court proceedings. In the case sub judice, the record reveals Appellant
appeals the November 6, 2013, “Sentence Entry.” This entry states in bold:
“Defendant entered a plea of Guilty. Defendant found Guilty.” This is
not a correct notation of what actually transpired, as Appellant had a bench
trial. Attached to this entry, however, is another document dated October 2,
2013, which indicates the trial court found the defendant guilty after trial.
Gallia App. No. 13CA16 4
This document appears to be a hearing notice because it sets forth a
sentencing date of November 6, 2013. Initially, these documents raise some
concern regarding the finality of the November 6, 2013 order.
{¶8} A court of appeals has no jurisdiction over orders that are not
final and appealable. State v. Smith, 4th Dist. Highland No. 10CA13, 2011-
Ohio-1659, ¶3, citing Section 3(B)(2), Article IV, Ohio Constitution
(“Courts of appeals shall have such jurisdiction to review and affirm,
modify, or reverse judgments or final orders of the courts of record inferior
to the courts of appeals within the district * * *”); see, also, R.C. 2953.02.
We are required to sua sponte raise jurisdictional issues when they become
apparent. See, e.g., In re B.J.G. 4th Dist. Adams No. 10CA894, 2010-Ohio-
5195, at ¶6.
{¶9} In State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, 958
N.E.2d 142, at ¶14, the court held a judgment of conviction is a final order
subject to appeal under R.C. 2505.02 when the judgment entry sets forth (1)
the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4)
the time stamp indicating the entry upon the journal by the clerk. Resolution
of the issues set forth in Lester required a discussion of Crim.R. 32(C) and
the Supreme Court of Ohio’s decision in State v. Baker, 119 Ohio St. 3d 197,
2008-Ohio-3330, 893 N.E.2d 163. Lester modified the holding in Baker, to
Gallia App. No. 13CA16 5
the extent that Baker had implied or had been interpreted to require, that
more than the fact of the conviction, the substantive provisions of Crim.R.
32(C), i.e. the “manner of conviction” must also be set out in the judgment
entry of conviction before it becomes a final order.2
{¶10} As noted above, the November 6, 2013 entry incorrectly
indicates Appellant entered a plea of guilty. However, it does set forth the
fact of conviction. The fact that a judgment entry of conviction does not
indicate how the defendant’s conviction was effected - by a guilty plea, a no-
contest plea upon which the court has made a finding of guilty, a finding of
guilty based upon a bench trial, or a guilty verdict resulting from a jury trial
- does not prevent the order from being final. State v. Shepherd, 4th Dist.
Scioto No. 12CA3469, 2012-Ohio-5631, ¶11; Lester, supra, at ¶16. Despite
the error setting forth the manner of conviction, there is the “fact of
conviction” and, thus, we conclude the November 6, 2013 entry is final and
we proceed to review the merits of the arguments raised in Appellant’s brief.
B. ANDERS BRIEF
{¶11} Under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396
(1967), counsel may ask permission to withdraw from a case when counsel
has conscientiously examined the record, can discern no meritorious claims
2
The law in Baker also requires that the required elements constituting a final appealable order “must occur
in a single document.” State v. Smead, 9th Dist. Summit No. 24903, 2010-Ohio-4462, ¶10, citing Baker, at
¶7, 893 N.E.2d 163.
Gallia App. No. 13CA16 6
for appeal, and has determined the case to be wholly frivolous. Id. at 744;
State v. Adkins, 4th Dist. No. 03CA27, 2004-Ohio-3627, ¶8. Counsel’s
request to withdraw must be accompanied with a brief identifying anything
in the record that could arguably support the client’s appeal. Anders at 744;
Adkins at ¶8. Further, counsel must provide the defendant with a copy of the
brief and allow sufficient time for the defendant to raise any other issues, if
the defendant chooses to. Id.
{¶12} Once counsel has satisfied these requirements, the appellate
court must conduct a full examination of the trial court proceedings to
determine if meritorious issues exist. If the appellate court determines that
the appeal is frivolous, it may grant counsel’s request to withdraw and
address the merits of the case without affording the appellant the assistance
of counsel. Id. If, however, the court finds the existence of meritorious
issues, it must afford the appellant assistance of counsel before deciding the
merits of the case. Anders at 744; State v. Duran, 4th Dist. No. 06CA2919,
2007-Ohio-2743, ¶7.
{¶13} In the current action, Appellant’s counsel advises that the
appeal is wholly frivolous and has asked permission to withdraw. Pursuant
to Anders, counsel has filed a brief raising two potential assignments of error
for this Court’s review.
Gallia App. No. 13CA16 7
C. POTENTIAL ASSIGNMENTS OF ERROR
“I. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE BECAUSE THE STATE DID NOT PROVE
BEYOND A REASONABLE DOUBT THE ELEMENT OF
POSSESSION.”
“II. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE BECAUSE THE STATE DID NOT PROVE
BEYOND A REASONABLE DOUBT THE ELEMENT THAT THE
PILL WAS A CONTROLLED SUBSTANCE.”
1. STANDARD OF REVIEW
{¶14} When considering whether a conviction is against the manifest
weight of the evidence, our role is to determine whether the evidence
produced at trial “attains a high degree of probative force and certainty
required of a criminal conviction.” State v. Fry, 4th Dist. Jackson No.
03CA26, 2004-Ohio-5747, quoting State v. Getsy, 84 Ohio St. 3d 180, 193,
702 N.E.2d 866 (1998). The reviewing court sits, essentially, as a “
‘thirteenth juror’ and [may]disagree []with the fact finder’s resolution of the
conflicting testimony.” Fry, supra, quoting State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Tibbs v. Florida, 457 U.S.
31, 42, 102 S. Ct. 2211 (1982). The reviewing court must dutifully examine
the entire record, weighing the evidence and considering the credibility of
witnesses, but keeping in mind that credibility generally is an issue for the
trier of fact to resolve. Fry, supra, citing State v. Thomas, 70 Ohio St. 2d 79,
Gallia App. No. 13CA16 8
80, 434 N.E.2d 1356 (1982); State v. De Hass, 10 Ohio St. 2d 230, 227
N.E.2d 212 (1967), paragraph one of the syllabus. The reviewing court may
reverse the conviction if it appears that the factfinder, in resolving
evidentiary conflicts, “ ‘clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
ordered. ’ ” Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d 541, quoting State
v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (Ist. Dist. 1983). On
the other hand, we will not reverse a conviction if the state presented
substantial evidence upon which the trier of fact could reasonably conclude
that all essential elements of the offense had been established beyond a
reasonable doubt. Fry, supra,citing State v. Eley, 56 Ohio St. 2d 169, 383
N.E.2d 132 (1978), syllabus.
2. LEGAL ANALYSIS
{¶15} Because Appellant’s assignments of error are interrelated and
necessitate review under the “manifest weight of the evidence” standard, we
consider them jointly. Under Appellant’s first assignment of error, she
argues constructive possession was not proven by the state. At trial,
Appellant testified she had recently changed purses and was using her
daughter’s purse. Appellant denied knowing the one-half Hydrocodone
tablet was in the purse.
Gallia App. No. 13CA16 9
{¶16} Possession of a controlled substance may be actual or
constructive. State v. Williams, 4th Dist. Ross No. 03CA2736, 2004-Ohio-
1130, ¶23. See State v. Wolery, 46 Ohio St. 2d 316, 329, 348 N.E.2d 351
(1976) (Internal citations omitted.). A person has “actual possession” of an
item if the item is within his immediate physical possession. Williams,
supra, citing State v.Fugate, 4th Dist. Washington No. 97CA2546, 1998 WL
729221, *7. “Constructive possession” exists when an individual is able to
exercise dominion and control over an item, even if the individual does not
have immediate physical possession of it. Williams, supra, citing State v.
Hankerson, 70 Ohio St. 2d 87, 434 N.E.2d 1362 (1982), syllabus. A
defendant’s mere presence in an area where drugs are located does not
conclusively establish constructive possession. Williams, supra, at ¶25;
State v. Cola, 77 Ohio App. 3d 448, 450, 602 N.E.2d 730 (11th Dist. 1991);
Cincinnati v. McCartney, 30 Ohio App. 2d 45, 48, 281 N.E.2d 855 (1st. Dist.
1971). However, a defendant’s proximity to drugs may constitute some
evidence of constructive possession. Williams, supra, at 25. Mere presence
in the vicinity of drugs, coupled with another factor probative of dominion
or control over the contraband, may establish constructive possession.
Fugate, at *8.
Gallia App. No. 13CA16 10
{¶17} At trial, Trooper Wilson identified Appellant and described the
facts surrounding his encounter with her on the roadside as set forth above.
Specifically, Trooper Wilson testified another officer, Trooper Hurd,
retrieved the purse from the driver’s side of the vehicle after Appellant told
him where to find it. Trooper Wilson further testified Appellant advised the
purse belonged to her, and he found a prescription bottle inside, with
multiple pills and one Hydrocodone. He described the Hydrocodone pill as
white, one-half tablet, oval-shaped. Trooper Wilson asked Appellant if it
was her pill bottle and her pills, and she advised it was. She also identified
the pill as Hydrocodone. Trooper Wilson testified at no time, did he see
anybody at the scene, other than the defendant, with that particular purse.
{¶18} On cross-examination, Trooper Wilson identified Defendant’s
Exhibit 1 as the pill bottle in question. He admitted the prescription on the
bottle was made out to Angela Massey.
{¶19} Appellant testified she was in the process of moving on the
date of her arrest. Her daughter, Angela Massey, was helping her.
However, her car broke down on the road. Appellant also identified
Defendant’s Exhibit 1, the pill bottle. Appellant testified as follows:
Q. And whose pill bottle is that
A. Um, Angela Massey’s.
Gallia App. No. 13CA16 11
Q. And was, was it located in your purse at a period, for a period
of time?
A. Yes.
Q. Okay. And how did it get there?
A. Uh, it was her purse and she had threw my stuff in there to
change purses because we had a funeral to go to. That’s why
we were down here, to get my stuff and to go to the funeral.
Q. So when you’re talking about your purse and that you
identified, or that they’re identifying as your purse was that
actually your purse?
A. Yes.
Q. Okay. Now, because this is a little confusing. How was it that
the pills ended up in that purse?
A. Because I, she had my purse. She had a box, she had some of
my stuff. So she got the purse out and I said I need to change
pocketbooks, mine’s too small, so she took the stuff out and just
threw it in the purse that was in the box that was at her house.
So she had evidently used my purse.
Q. Okay. So she had used this purse was…
A. Yes.
Q. …this was found in?
A. Yes.
Q. And how recently before this happened had she used your
purse?
A. Uh, probably while I was in Georgia. Because my stuff…
Q. Okay. Can you give me, was that week, two weeks, a month?
Gallia App. No. 13CA16 12
A. Uh, three months.
Q. Okay. And had you used that purse since that time?
A. No.
Q. Okay. So when was the first time you had used your purse after
she had used it?
A. Uh, probably just a few, a couple of days before uh, I had
loaded up my stuff in the car.
Q. Okay. Now tell me basically uh, how the officer came to get
the purse?
A. Um, it was in the car, I was in the patrol car, someone, one of
the officers went to the car and got my purse out of the car.
Q. Okay. Did you tell them that you wanted your purse?
A. Yes.
Q. And then they got it for you?
A. Yes.
Q. Now did they ask you anything about the contents of that
purse?
A. If the contents were mine.
Q. And what was your response?
A. Yes.
Q. Okay. Did you realize at the time that that pill bottle was in
there?
Q. Is that pill bottle yours?
Gallia App. No. 13CA16 13
A. No.
{¶20} On cross-examination, Appellant testified she had been using
the purse but had not been inside it for a couple of days. She admitted her
wallet was in the purse and she had put it there. She testified her daughter
put everything that was in the other purse in the one she used. Appellant
testified they had changed purses but she had not been in her purse, or even
carrying it around. She denied knowing there was a bottle of pills and she
denied hearing the pills rattle inside.
{¶21} A purse is something so closely identified with a person that if
it is with her, or in close proximity at the time the officer stops her, then it is
in her possession. State v. Straight, 9th Dist. Summit No. 12541, 1986 WL
10257, *2. In State v. Ritchie, 1st Dist. Hamilton No. C-810658, 1982 WL
8680, the appellate court stated “[W]e believe a woman’s purse in her
possession [under the circumstances revealed by the record] is within the
area under her immediate control. Her purse is equivalent to men’s pockets,
not to luggage separated from her immediate control.” Various courts have
analyzed Appellants’ arguments denying “possession” and “knowledge” of
contraband found in purses.
{¶22} In State v. Montgomery, 10th Dist. Franklin No. 89AP-1355,
Montgomery was found guilty of two counts of possession of a controlled
Gallia App. No. 13CA16 14
substance in violation of R.C. 2925.11. A search of the residence where
Montgomery was located revealed, among other items, a purse containing a
Tylenol bottle which contained Schedule II controlled substances.
Montgomery argued on appeal her conviction by jury trial was against the
manifest weight of the evidence, and contended that while the purse was
hers, that fact did not prove she knowingly possessed the drugs contained in
the Tylenol bottle. Montgomery contended someone else could have placed
those in her purse without her knowledge. While acknowledging the
evidence against Montgomery was primarily circumstantial and the scenario
of how the drugs came in to her possession was possible, it did not present a
reasonable scenario. Montgomery’s conviction was affirmed.
{¶23} In State v. Jackson, 11th Dist. Ashtabula No. 2002-A-0027,
Jackson also argued her conviction by a jury of possession of crack cocaine
was against the manifest weight of the evidence. She argued during the
search of her person, there was a sufficient amount of time for someone to
have planted the crack cocaine in her purse. The appellate court noted while
Jackson’s assertion was true, the state had presented evidence to establish
the purse belonged to Jackson; no one planted crack cocaine in the purse;
and that the crack cocaine fell from Jackson’s purse when she emptied its
contents as instructed by an officer. Thus, viewed in the light most
Gallia App. No. 13CA16 15
favorable to the prosecution, there was sufficient evidence to establish
Jackson possessed the crack cocaine. The appellate court also held after a
thorough review of the record, it could not say the jury’s verdict was against
the manifest weight of the evidence.
{¶24} In State v. Scott, 3rd Dist. Seneca No. 13-04-05, 13-04-36,
2005-Ohio-549, Scott was convicted of possession of drug paraphernalia and
possession of marijuana. Her convictions were despite the fact Scott’s purse
was out of her actual possession for two hours after it was reported stolen.
The appellate court found sufficient evidence to prove Scott possessed the
items because Scott identified and laid claim to the purse and its contents,
and because she admitted she used the drugs for medical reasons.
{¶25} In State v. Harvath, 5th Dist. Stark No. 2005CA00330, 2006-
Ohio-5549, Harvath was convicted by a jury of illegal assembly or
possession of chemicals for the manufacture of drugs, carrying concealed
weapons, and aggravated possession of drugs. Harvath had been the driver
of a suspicious vehicle which made a questionable turn, and was stopped by
a Masillon police officer. Harvath drove the vehicle with a male passenger
up front and one female passenger in the back. A brown leather purse
(containing an Ohio I.D. card, a loaded handgun, a vial of suspected
methamphetamine, a coffee filter, a white powder substance suspected to be
Gallia App. No. 13CA16 16
methamphetamine, an electronic scale, one gold earring, pseudoephedrine
tablets, and money) was found in the front seat. Harvath gave her name to
the arresting officer as “Christine Heppe. ”
{¶26} At trial Harvath denied the purse found in her friend’s car was
hers and testified she did not even see the purse inside the vehicle. She also
denied knowledge of the gun and drugs found inside her purse. She also
testified that a gold earring inventoried at the jail was not hers and was
placed in her inventory by mistake. Harvath argued her convictions were
against the sufficiency and the manifest weight of the evidence.
{¶27} On appeal, Harvath pointed out: (1) another woman was in the
car at the time the purse was found; (2) a cell phone contained in the purse
was stipulated at trial to belong to someone else; and (3) the gold earring
was not hers. However, the state produced evidence at trial that the purse
and the contraband belonged to Harvath. The arresting officer testified
Harvath identified herself as “Christine Heppe.” An Ohio ID card
containing the name “Christine Heppe” was found in the purse, which was
located in the front of the car, next to the driver’s seat, of the car which
Harvath drove. No other females were seated in the front seat of the car.
The gold earring inventoried from Harvath’s possessions matched an earring
found in the purse. In addition, when another officer walked into the jail and
Gallia App. No. 13CA16 17
asked for “Christine,” Harvath came forward. At trial and on appeal,
Harvath maintained that officer was lying. However, the appellate court
noted the jury, as trier of fact, was in the best position to assess credibility.
Appellant’s convictions were affirmed.
{¶28} In the case sub judice, we note on redirect, Appellant testified
the purse was “pretty big” and full, made out of plastic and canvas. She
testified there were things at the bottom of the purse that even had she
opened it, she would not have seen. Because the purse was partially cloth,
she would not have heard any pills rattling. Appellant denied cutting the pill
in half.
{¶29} The State of Ohio then recalled Trooper Wilson in rebuttal,
who testified Appellant’s purse was small and black. He examined it by
placing it on the hood of a vehicle. The top of the purse folded open and the
pill bottle was visible from the top. He further testified Appellant’s small
wallet with her I.D. was in the purse. On cross-examination, Trooper
Wilson testified he did not have a picture of the purse. He admitted since
the time of Appellant’s traffic stop, he had had possibly 200 other stops.
{¶30} Having reviewed the entire record, weighed the evidence, and
considered the credibility of the witnesses, we find the State of Ohio
presented substantial evidence upon which the trier of fact could reasonably
Gallia App. No. 13CA16 18
conclude that all essential elements of the offense of possession of drugs had
been established beyond a reasonable doubt. In doing so, we are mindful
that the credibility of the witnesses was an issue for the trial court to resolve.
{¶31} Here, the State of Ohio presented evidence of actual and
constructive possession. Trooper Wilson testified there were no other
females at the scene, only two males assisting Appellant with her car
trouble. The purse was retrieved from the driver’s side of the vehicle, where
Appellant told him it would be. Therefore, the purse was in her immediate
physical possession. This evidence also demonstrates Appellant had
dominion and control over the purse, even though she did not have
immediate physical possession at the time she was being questioned by
Trooper Wilson on the roadside.
{¶32} Appellant’s testimony was confusing in that, at the scene, she
initially indicated the purse belonged to her. Then she testified the purse
belonged to her daughter, Angela Massey, who had thrown Appellant’s
“stuff” in it, “to change purses because we had a funeral to go to.”
Appellant further testified she had used the purse but had not been inside it
for a couple of days, although she admitted her wallet was in the purse.
Trooper Wilson testified Appellant’s I.D. was in the wallet. When he
opened the purse to examine it, the pill bottle was visible from the top.
Gallia App. No. 13CA16 19
Interestingly, at trial, Angela Massey never presented to testify as to the
“purse switch” or as to the ownership of the pill bottle and Hydrocodone that
was purportedly hers.3 Furthermore, Appellant was in the process of moving
from the Gallia County area to Urbana, Ohio. Given the travel and the
circumstances also surrounding a move, it is not reasonable to think that
Appellant had not had occasion to remove her wallet for a couple of days.
{¶33} Finally, Appellant described the purse as big and full, made out
of cloth. For that reason, she did not hear a pill bottle rattling. By contrast,
Trooper Wilson testified the purse was small and black and, as noted above,
the pill bottle was easily seen from the top. The trier of fact was in the best
position to resolve any credibility issues. This court tends to agree with the
trial court’s general assessment that “people don’t put things in [a] purse that
[gets carried around ] for a couple of days and [I] don’t know what’s in it.”
For the above reasons, we do not find the trier of fact clearly lost its way and
created a manifest miscarriage of justice requiring reversal of Appellant’s
conviction.
{¶34} In her second assignment of error, Appellant contends the State
did not present evidence of a scientific analysis or testimony of an expert
witness for the identification of the substance. The admission or exclusion
3
Admittedly, the evidence does not show us if Angela Massey’s prescription was valid on the date of
Appellant’s arrest.
Gallia App. No. 13CA16 20
of evidence is within the sound discretion of the trial court, and the trial
court’s decision to admit or exclude such evidence cannot be reversed absent
an abuse of discretion. State v. Craft, 4th Dist. Athens NO. 97CA53, 1998
WL 255442, *7 (Internal citations omitted.). The term “abuse of discretion”
connotes more than an error of judgment; it implies that the court’s attitude
is unreasonable, arbitrary, or unconscionable; it implies that the court’s
attitude is unreasonable, arbitrary or unconscionable. Craft, supra, citing
State v. Xie, 62 Ohio St. 3d 521, 583 N.E.2d 715 (1992); State v.
Montgomery, 61 Ohio St. 3d 410, 575 N.E.2d 167 (1991). When applying
the abuse of discretion standard of review, we are not free to merely
substitute our judgment for that of the trial court. Craft, supra, citing In re
Jane Doe 1, 57 Ohio St. 3d 135, 137-138, 566 N.E.2d 1181 (1991), citing
Berk v. Matthews, 53 Ohio St. 3d 161, 169, 559 N.E.2d 1301 (1990).
{¶35} Appellant specifically argues the State relied upon the
testimony of Trooper Wilson that Appellant identified the tablet as
Hydrocodone.4 On cross-examination, Trooper Wilson admitted he could
not identify the pill and it was sent off to a laboratory. He also admitted he
did not have any laboratory testing results with him that day. We note,
Appellant did not object or raise this issue in the trial court proceedings. As
4
At the outset, the parties stipulated to Trooper Wilson’s qualifications as a “duly qualified and acting
peace officer in the State… of Ohio at all times relevant to the case.”
Gallia App. No. 13CA16 21
such, we will review Appellant’s argument under a “plain error” standard of
review.
{¶36} Pursuant to Crim. R. 52(B), we may notice plain errors or
defects affecting substantial rights. State v. Smith, 4th Dist. Highland No.
09CA29, 2010-Ohio-4507, ¶67. We will notice plain error “only to prevent
a manifest miscarriage of justice. “ Id., quoting State v. Long, 53 Ohio St. 2d
91, 372 N.E.2d 804 (1978), at paragraph three of the syllabus. And
“reversal is warranted only if the outcome of the trial clearly would have
been different absent the error.” Id., quoting State v. Hill, 92 Ohio St. 3d
191, 203, 2001-Ohio-41,749 N.E.2d 274, citing Long at paragraph two of the
syllabus.
{¶37} Trooper Wilson did not testify as an expert witness. He
testified on redirect, he could not identify the pill and that is why he asked
Appellant to identify it. He relied on her identification. He further testified:
“[T]he Trooper and I looked it up in the uh, pill bible book…through his
phone.” He testified the description in the reference guide matched the
physical description and the pill he had for Hydrocodone, Schedule III.
Trooper Wilson reiterated that information matched what Appellant had told
him.
Gallia App. No. 13CA16 22
{¶38} Since the adoption of the Rules of Evidence, both on the state
and federal levels, many courts have used an Evid.R. 701 analysis and have
allowed lay witnesses to testify about the identity of a drug. State v. McKee,
91 Ohio St. 3d 292, 2001-Ohio-41, 744 N.E.2d 737. Evid. R. 701 provides:
“If the witness is not testifying as an expert, his testimony in the form
of opinions or inferences is limited to those opinions or inferences
which are (1) rationally based on the perception of the witness and (2)
helpful to a clear understanding of his testimony or the determination
of a fact in issue.”
“[C]ourts have permitted lay witnesses to express their opinions
in areas in which it would ordinarily be expected that an expert must
be qualified under Evid.R. 7025….Although these cases are of a
technical nature in that they allow lay opinion testimony on a subject
outside the realm of common knowledge, they will fall within the
ambit of the rules requirement that a lay witness’s opinion be
rationally based on firsthand observations and helpful in determining a
fact in issue. These cases are not based on specialized knowledge
within the scope of Evid. R. 702, but rather are based upon a
layperson’s personal knowledge and experience.”
{¶39} The McKee court held that the “experience and knowledge of a
drug user lay witness can establish his or her competence to express an
5
Evid.R. 702 governs the admissibility of expert testimony. The rule states:
“A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge or experience
possessed by lay persons or dispels a misconception among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience,
training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable, scientific, technical, or other specialized
information…..”
Gallia App. No. 13CA16 23
opinion on the identity of a controlled substance if a foundation for this
testimony is first established.”
{¶40} In applying this case law to the facts at hand, we note Trooper
Wilson’s testimony pits his credibility against Appellant’s. He testified
Appellant told him the pill was Hydrocodone. By contrast, Appellant
testified when asked about the type of pill, she told the trooper she “didn’t
know.” Again, in resolving conflicts in the testimony, the trier of fact is in
the best position to observe the witnesses’ demeanor and weigh credibility.
{¶41} Furthermore, in accordance with the law in McKee, although
Trooper Wilson may have not known it at the time of the stop, the evidence
demonstrates it was reasonable to rely on Appellant’s identification of the
drug. The evidence at trial established a foundation for Appellant’s opinion.
At trial, Appellant identified Defendant’s Exhibit 2, a pill bottle with
prescription in 2010 made out to her for Hydrocodone. Appellant testified
she would have recognized Hydrocodone because of her previous
prescription.
{¶42} In this case, Trooper Wilson relied on Appellant’s
identification. He subsequently matched the pill she identified as
Hydrocodone with the description of Hydrocodone in a reference guide.
The evidence at trial established a foundation for Appellant’s knowledge and
Gallia App. No. 13CA16 24
showed, albeit after the fact, the trooper’s reliance on her identification was
reasonable. Based on these facts, we find no plain error occurred. We
therefore overrule Appellant’s second assignment of error and affirm the
judgment of the trial court.
D. CONCLUSION
{¶43} In our view, the trial court’s findings are supported by the
record. As such, we also conclude that the potential assignments of error
advanced by appellate counsel are wholly without merit. The motion of
counsel for Appellant requesting to withdraw as counsel is granted. This
appeal is hereby dismissed.
APPEAL DISMISSED.
Gallia App. No. 13CA16 25
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED. Costs are assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Gallipolis Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment Only.
For the Court,
BY: ___________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.