State v. Palmer

[Cite as State v. Palmer, 2017-Ohio-2639.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28303
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANDREW G. PALMER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2015 04 1264
DECISION AND JOURNAL ENTRY
Dated: May 3, 2017
TEODOSIO, Judge.
{¶1} Appellant, Andrew G. Palmer, appeals from his convictions for possession of
marijuana and trafficking in marijuana in the Summit County Court of Common Pleas. This
Court affirms.
I.
{¶2} Akron Police Detective Chris Carney works in parcel interdiction with his K-9
partner named “Cruiser.” Cruiser alerted to a FedEx parcel sent by Mr. Palmer to someone in
California. Detective Carney obtained a warrant to search the parcel and discovered $18,000.00
in cash inside.
{¶3} The next day, Detective Carney performed a “knock and talk” at Mr. Palmer’s
house along with Detectives Nicholas Gray and Matt Akers. Detective Carney knocked on the
front door for about five minutes before Mr. Palmer eventually opened it. The officers soon
entered the house and engaged Mr. Palmer in a discussion in his living room about the FedEx
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parcel. Mr. Palmer admitted to sending the money and offered different stories explaining the
cash shipment. He said it was for a business for his nephew, but later said it was for a marijuana
investment out in California. Detective Carney noticed a jar of marijuana on a table in the dining
room. Mr. Palmer was arrested and the officers waited while they secured a search warrant for
the house. Mr. Palmer had $495.00 in cash on his person. While awaiting the search warrant for
the house, UPS delivered another parcel to Mr. Palmer’s house. Mr. Palmer refused to allow the
police to open the UPS parcel and told them that they needed a warrant.
{¶4} The officers procured search warrants for the house and the UPS parcel. In the
house, they discovered $5,980.00 in cash hidden in a work boot or shoe, a pound of marijuana in
a vacuum-sealed bag at the bottom of a clothes basket, and other contraband. In the UPS parcel,
they discovered three more pounds of marijuana in vacuum-sealed bags.
{¶5} Mr. Palmer was charged with possession of marijuana, trafficking in marijuana,
two forfeiture specifications, and having weapons while under disability. After a jury trial, he
was convicted of possession of marijuana and trafficking in marijuana. The trial court
determined that the two offenses were allied offenses of similar import and merged the
possession offense into the trafficking offense for sentencing. The jury found that $23,980.00 of
the $24,475.00 seized was subject to forfeiture. Mr. Palmer was sentenced to thirty months in
prison.
{¶6} Mr. Palmer now appeals from his convictions and raises six assignments of error
for this Court’s review.
{¶7} For ease of analysis, we consolidate Mr. Palmer’s first, second, and third
assignments of error.
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II.
ASSIGNMENT OF ERROR ONE
ONCE IT IS DETERMINED (IN A SEARCH) THAT A [FEDEX] PACKAGE
DOES NOT CONTAIN ANY CONTRABAND, THUS LACKING ANY
PROBABLE CAUSE TO DO SO, ANY FURTHER DETENTION (OF THE
MAILED PACKAGE) VIOLATES THE FOURTH AMENDMENT. WITH
THIS BEING SO, THE COURT ERRED WHEN IT REFUSED TO GRANT
THE MOTION TO SUPPRESS AND ORDER THE RETURN OF THE MONEY
TO THE SENDER.
ASSIGNMENT OF ERROR TWO
GIVEN THE FACT THAT IT IS INDISPUTABLE THE FEDEX PACKAGE
THE OFFICER EXTRACTED FROM THE MAIL DID NOT CONTAIN ANY
CONTRABAND[,] IT FOLLOWS HIS FURTHER DETENTION AND
RETENTION OF THIS PACKAGE, ON HIS OWN AUTHORITY, VIOLATED
THE FOURTH AMENDMENT; HENCE THE COURT ERRED WHEN [IT]
DENIED THE MOTION TO SUPPRESS AND WHEN [IT] REFUSED TO
ORDER THE MONEY RETURNED TO THE APPELLANT.
ASSIGNMENT OF ERROR THREE
ONE WHO OPENS THE DOOR OF HIS HOME IN THE WAKE OF
PERSISTENT DEMANDS OF THE POLICE DOES NOT DO SO
VOLUNTARILY. WITH THIS BEING SO, THE COURT ERRED WHEN IT
RULED THE ENTRY HERE AS CONSENSUAL.
{¶8} In his first, second, and third assignments of error, Mr. Palmer argues that the trial
court erred in denying his motion to suppress because (1) the officers unlawfully retained the
FedEx package after searching it and discovering only cash inside, and (2) he did not voluntarily
consent to the officers’ entry into his house. We disagree.
{¶9} A motion to suppress presents a mixed question of law and fact:
When considering a motion to suppress, the trial court assumes the role of trier of
fact and is therefore in the best position to resolve factual questions and evaluate
the credibility of witnesses. Consequently, an appellate court must accept the trial
court’s findings of fact if they are supported by competent, credible evidence.
Accepting these facts as true, the appellate court must then independently
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determine, without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard.
State v. Oberholtz, 9th Dist. Summit No. 27972, 2016-Ohio-8506, ¶ 5, quoting State v. Burnside,
100 Ohio St.3d 152, 2003–Ohio–5372, ¶ 8.
{¶10} In his motion to suppress, Mr. Palmer requested “an Order suppressing all oral
statements made to law enforcement officers during the course of the illegal detention and
subsequent searches conducted in this matter” because “law enforcement entered [his] residence
without invitation and without consent” and “illegally gathered information was used to secure a
search warrant for [his] residence * * *.” Therefore, “sufficient probable cause did not exist for
the judge to issue the search warrant [for the house.]”
{¶11} Initially, we note that the motion did not address any alleged unlawful retention of
the FedEx parcel. At the two suppression hearings, Mr. Palmer challenged the officers’ entry
into his house and the validity of the initial search warrant to open the FedEx parcel. He did not
make any argument to the trial court regarding any unlawful retention of the FedEx parcel by
police after it was searched and only cash was found inside. Accordingly, Mr. Palmer has
forfeited this particular issue for purposes of appeal and we decline to address it. See State v.
Clayton, 9th Dist. Summit No. 27290, 2015-Ohio-663, ¶ 14.
{¶12} Mr. Palmer also argues that he did not voluntarily consent to the police officers
entering his house. The Fourth Amendment to the United States Constitution, as applied to the
states through the Fourteenth Amendment, provides in part that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated * * *.” Article I, Section 14, of the Ohio Constitution contains nearly
identical language. “For a search or seizure to be reasonable under the Fourth Amendment, it
must be based upon probable cause and executed pursuant to a warrant, unless an exception to
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the warrant requirement applies.” State v. Hetrick, 9th Dist. Lorain No. 07CA009231, 2008-
Ohio-1455, ¶ 19; citing Katz v. United States, 389 U.S. 347, 357 (1967).
{¶13} The Supreme Court of Ohio has explicitly recognized consent as an exception to
the warrant requirement. Id. at ¶ 21. “Where [a] police officer reasonably relies upon consent
given by an occupant of [a] premises to enter upon the premises, the entry upon the premises
does not violate the Fourth Amendment’s prohibition against unreasonable searches and
seizures.” State v. Harris, 2d Dist. Montgomery No. 19479, 2003-Ohio-2519, ¶ 22, citing
Illinois v. Rodriguez, 497 U.S. 177, 187 (1990). “Whether consent was voluntarily given is a
question of fact to be determined from the totality of the circumstances, and the government
bears the burden of showing that consent was ‘freely and voluntarily’ given by ‘clear and
positive’ evidence.” State v. Cummings, 9th Dist. Summit No. 20609, 2002 WL 57979, *3 (Jan.
16, 2002).
A person can demonstrate consent to enter either expressly or impliedly. Courts
have found such actions as opening a door and stepping back, or leading an
officer through an open door without expressing an intent that he should not
follow constitute implied consent. Further, voluntarily opening a door constitutes
voluntary consent to step into the threshold of an apartment.
(Citations omitted.) State v. Cooper, 9th Dist. Summit No. 21494, 2003-Ohio-5161, ¶ 9.
{¶14} At the two suppression hearings, the trial court heard conflicting testimony
regarding the circumstances surrounding the officers’ initial entry into Mr. Palmer’s house from
six different witnesses, including three police detectives, Mr. Palmer, a neighbor who lives down
the street, and a woman who was in a nearby driveway getting her brakes fixed.
{¶15} Detective Carney testified that he asked Mr. Palmer if he could come inside and
talk to him and Mr. Palmer said, “Come on in” and made a welcoming gesture with his hand.
After Detective Carney entered the house, Mr. Palmer saw the other officers and objected to
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those officers coming inside. However, Detective Carney explained to Mr. Palmer that police
protocol would not allow him to enter the house alone.
{¶16} Mr. Palmer emphasizes the following exchange during Detective Carney’s
testimony at the suppression hearing to assert that he involuntarily consented to the officer
entering his house:
Q: So, when you say he invited me into the house and you asked him if you could
come in, exactly and as specifically as you can, how does that exchange occur?
A: Do you mind - - I need to come in and talk to you about some things.
***
Q: And then I believe you said that another detective was behind you and also
entered the home?
A: That’s correct.
(Emphasis sic.). Mr. Palmer argues that Detective Carney was on a mission and his use of the
word “need” indicated that Mr. Palmer was essentially required to involuntarily consent to the
officer entering his house and submit to intimidation.
{¶17} However, Mr. Palmer uses an ellipsis to replace some particularly relevant
testimony from Detective Carney regarding his recollection as to whether Mr. Palmer consented
to the detective’s entry into the house. A more complete version of the officer’s testimony at the
hearing regarding his entry into the house is as follows:
Q: So, he comes to the door, and you said he opens the door?
A: Yes, sir.
Q: Okay. And we want to get specific here. Does he have, like, a storm door, an
inner door?
A: Two doors, the storm door and the interior door.
Q: And how does he open the door? I mean, what’s the posture here?
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A: Well, in my report, like I said, I saw him on the couch. As we’re knocking, he
- - I can only assume that he’s hearing us talk outside. He kind of slinks off the
couch. I don’t know if he was attempting to hide. He slinks off the couch. We
continue to knock. He comes to the door. He is out of breath, nervous. Opens
the door. Opened the door and - - I’ve been - - I’ve been a narcotics detective for
years. I smell marijuana.
Q: Okay. As soon as he opens the door?
A: Yeah.
Q: All right. So, what do you do then?
A: I asked him to come in and talk, and he does invite us in. He was fine with
me coming in. He was, like, I didn’t invite those guys in. But, once again, police
protocol, the officers I’m with are not going to let me go into a house by myself.
THE COURT: Can you say that again[?]
A: He let me into the house. I stepped into his living room. I believe it was
either Nick Gray that followed me into the house, and Mr. Palmer said, I didn’t
invite him in. And I said, well, he’s in here because I’m talking to you.
Q: So, when you say he invited me into the house and you asked him if you could
come in, exactly and as specifically as you can, how does that exchange occur?
A: Do you mind - - I need to come in and talk to you about some things.
Q: That’s what - -
A: Yeah.
Q: To the best you can recall, that’s exactly what you asked him?
A: That would be pretty standard. That would be - - sir, you know, can I come in
and talk to you?
Q: What - - how does he respond?
A: He says, well, come on in (indicating). He opens up the door, and I walk right
in.
Q: I mean, he actually verbalizes it and - - I know I’m getting very specific for
the record. You actually made a motion with your hand.
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A: Hand (indicating).
Q: Like as if to welcome him in. Do you recall that he - -
A: He said - - I asked, can I come in and talk to you? He said yeah. And I
stepped into the residence.
Q: Okay. So - - and at that time, during that exchange, did Mr. Palmer do
anything that you remember to indicate that he did not want you to come in?
A: No.
Q: And then I believe you said that another detective was behind you and also
entered the home?
A: That’s correct.
Q: And Mr. Palmer said, no, I don’t want him in here, or - -
A: Right.
Thus, Detective Carney’s use of the word “need” while testifying at the hearing, when viewed in
context with the rest of his testimony regarding his entry into the house, is not as outrageous as
Mr. Palmer would have this Court believe. The detective repeatedly testified that he asked Mr.
Palmer for permission to enter the house and Mr. Palmer allowed him inside.
{¶18} Detective Gray also testified that Mr. Palmer invited Detective Carney inside.
Detective Gray testified that he entered the house after Detective Carney and that Mr. Palmer
may have calmly asked who Detective Gray was, but Mr. Palmer did not do anything to indicate
that he did not want Detective Gray in his house.
{¶19} Detective Akers testified that he positioned himself on the side of Mr. Palmer’s
house to make sure no one ran out the back of the house while Detective Carney was knocking
on the front door. He could not see Detective Carney, but soon heard Detective Carney speaking
to someone and could not hear what they were talking about. As Detective Akers came back to
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the front of the house, he saw Detective Gray entering the house. Detective Akers then entered
the house as well.
{¶20} Mr. Palmer testified that he opened the door and Detective Carney snatched the
storm door out of his hand, went chest to chest with him, and barked, “Get back” in his face. Mr.
Palmer jumped back and the officers entered his house. They spoke to him about the FedEx
parcel and Mr. Palmer asked if they had a warrant. The officers looked at each other and Mr.
Palmer said, “You all need to get the fuck out of my house.”
{¶21} H.M. testified that she was across the street and a few houses down from Mr.
Palmer’s house getting the brakes fixed on her car. She heard banging on a door and looked
across the street to see people standing on Mr. Palmer’s front porch. Once the front door was
opened, she heard someone say what sounded like “Get back” and the men entered the house.
{¶22} A.C. testified that he lives past the intersection and two doors down from Mr.
Palmer on the same side of the street. He was checking his mail and heard some beating on Mr.
Palmer’s door. He saw the officers snatch the door and heard someone say, “Get back.” He
admitted on cross-examination that he is friends with Mr. Palmer and that they talk to each other
every day. He also admitted that he talked to Mr. Palmer about this incident after it happened.
{¶23} Detective Carney testified on rebuttal that he never told Mr. Palmer, “Get back,”
but he yelled, “Hey Matt” to Detective Akers who was around the side of the house.
{¶24} “When there is a conflict in the testimony of witnesses, as here, it is for the trier
of fact to determine the weight and credibility to be given such evidence.” State v. Pamer, 70
Ohio App.3d 540, 543 (9th Dist.1990). Here, the trial court stated in its order that it “considered
all of the testimony, the demeanor of the witnesses and all the facts and circumstances in this
case.” The court found that “the testimony of the investigating officers is more credible” and “it
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has been demonstrated by clear and convincing evidence that their entry into the house and the
subsequent interview was consensual.” The court noted that although Mr. Palmer initially
objected to more than one officer entering his house, he was told it was required for officer
safety. The court found that “[Mr. Palmer] did not terminate his consent based upon that factor
but allowed the interview to continue.” The trial court ultimately found that “based upon all the
facts and circumstances, the entry and continued presence of the officers in the house was with
[Mr. Palmer’s] consent * * *.”
{¶25} Upon review of the record, this Court accepts the trial court’s findings as
supported by competent, credible evidence. See Burnside, 100 Ohio St.3d at ¶ 8. The trial court
was in the best position to resolve factual questions and evaluate the credibility of witnesses. See
id. We conclude that the trial court did not err in finding that the detectives entered and
remained in the house with Mr. Palmer’s consent. Accordingly, the trial court did not err in
denying Mr. Palmer’s motion to suppress.
{¶26} Mr. Palmer’s first, second, and third assignments of error are overruled.
ASSIGNMENT OF ERROR FOUR
GIVEN A JURY’S QUESTION WHICH ASKED, IN EFFECT: WHETHER
THE “G” (THE MIDDLE INITIAL OF THE DEFENDANT AS INDICATED IN
THE INDICTMENT) WAS CONSISTENT WITH THE NAME “GREG
PALMER” TO WHOM THE UPS PACKAGE (CRITICAL IN THIS CASE)
WAS MAILED, THE COURT ERRED AND DENIED DUE PROCESS WHEN
IT, NOT ONLY, REFUSED TO TAKE JUDICIAL NOTICE BUT ALSO WHEN
IT FAILED TO INSTRUCT THE JURY THE DEFENDANT’S MIDDLE
NAME WAS NOT GREG.
{¶27} In his fourth assignment of error, Mr. Palmer argues that the trial court erred (1)
by not taking judicial notice that his middle initial does not stand for Greg and (2) by not
instructing the jury that his middle name is not Greg. We disagree.
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{¶28} Courts may take judicial notice of a fact “not subject to reasonable dispute in that
it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable
of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” Evid.R. 201(B). “Judicial notice may be taken at any stage of the proceeding.”
Evid.R. 201(F). “In a criminal case, the court shall instruct the jury that it may, but is not
required to, accept as conclusive any fact judicially noticed.” Evid.R. 201(G).
{¶29} “[W]here, during the course of its deliberations, a jury requests further instruction,
or clarification of instructions previously given, a trial court has discretion to determine its
response to that request. A reversal of a conviction based upon a trial court’s response to such a
request requires a showing that the trial court abused its discretion.” State v. Carter, 72 Ohio
St.3d 545, 553 (1995). “The term ‘abuse of discretion’ connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶30} During deliberations, the jury submitted a question to the trial court inquiring
what the middle initial “G” stood for in Mr. Palmer’s name. Mr. Palmer had a purported social
security card and birth certificate with him in court, which stated that his middle name is Griffen.
He asked the court to take judicial notice of the fact that his middle name is Griffen or,
alternatively, that his middle name is not Greg.
{¶31} Mr. Palmer inaccurately asserts that the prosecutor did not dispute the authenticity
of the social security card or birth certificate. The prosecutor initially stated on the record that he
could have challenged the documents during trial if they had been brought up during trial. He
further stated, “Your Honor, just to clarify, I don’t agree that they’re credible. That wasn’t my
initial argument. I’m not going to stipulate to those as being authentic.” Mr. Palmer disregards
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the fact that the appropriate time to present this evidence was at trial. See Mentor Economic
Assistance Corp. v. Eichels, 11th Dist. Lake No. 2015-L-097, 2016-Ohio-1162, ¶ 22.
{¶32} The trial court responded to the question by instructing the jury as follows:
The Court will instruct you that the evidence has been given to you and the
evidence is closed, and the Court cannot give you any more evidence or allow the
parties to do so. However, the Court would also tell you that you are not to
speculate on what the evidence would mean. If you do not have evidence of an
issue, you cannot fill the evidence in by speculating, if you understand what I’m
saying.
{¶33} Apart from a general reference to Evid.R. 201, Mr. Palmer cites to no other
authority, statute, or part of the record and fails to conduct any analysis to support his argument
that the trial court erred and should have taken judicial notice or instructed the jury differently.
See App.R. 16(A)(7); see also State v. Smith, 9th Dist. Wayne No. 15AP0001, 2017-Ohio-359, ¶
31. Consequently, this Court will not address these undeveloped arguments or assume Mr.
Palmer’s duty and formulate an argument for him. See State v. Hendon, 9th Dist. Summit No.
27951, 2016-Ohio-8137, ¶ 21.
{¶34} Upon review of the record, this Court cannot say that the trial court abused its
discretion and acted unreasonably, arbitrarily, or unconscionably in its instructions to the jury in
response to the question.
{¶35} Mr. Palmer’s fourth assignment of error is overruled.
{¶36} For ease of analysis, we consolidate Mr. Palmer’s fifth and sixth assignments of
error.
ASSIGNMENT OF ERROR FIVE
WITH FORFEITURE BEING PART OF A DEFENDANT’S SENTENCE, IT
FOLLOWS THAT ANY PROPERTY FOFEITED [SIC] MUST BE SHOWN TO
HAVE HAD A CONNECTION WITH THE OFFENSE, OR OFFENSES, OF
CONVICTION. WITH THIS BEING SO, THE ABSENCE OF ANY SUCH
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PROOF HERE RENDERS THE FORFEITURE DECREED [SIC]
INDEFENSIBLE.
ASSIGNMENT OF ERROR SIX
THE COURT ERRED WHEN IT RULED THE VERDICT FINDING THE
ACCUSED GUILTY WAS SUFFICIENT TO ESTABLISH GUILT BEYOND A
REASONABLE DOUBT.
{¶37} In his fifth and sixth assignments of error, Mr. Palmer challenges the sufficiency
of the evidence and argues that (1) there was no evidence that the seized money was connected
to the underlying offenses and (2) there was no evidence that he actually possessed the UPS
parcel. We disagree with both propositions.
{¶38} “A sufficiency challenge of a criminal conviction presents a question of law,
which we review de novo.” State v. Spear, 9th Dist. Summit No. 28181, 2017-Ohio-169, ¶ 6,
citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “Sufficiency concerns the burden of
production and tests whether the prosecution presented adequate evidence for the case to go to
the jury.” State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25, citing Thompkins
at 386. “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., quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus. However, “we do not resolve evidentiary conflicts or assess the
credibility of witnesses, because these functions belong to the trier of fact.” State v. Hall, 9th
Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.
{¶39} Mr. Palmer was convicted of possession of marijuana under R.C. 2925.11(A),
which states “[n]o person shall knowingly obtain, possess, or use a controlled substance or a
controlled substance analog.” Because the amount of marijuana exceeded one thousand grams,
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but was less than five thousand grams, possession was a felony of the third degree under R.C.
2925.11(C)(3)(d).
{¶40} Mr. Palmer was also convicted of trafficking in marijuana under R.C.
2925.03(A)(2), which states “[n]o person shall knowingly * * * [p]repare for shipment, ship,
transport, deliver, prepare for distribution, or distribute [marijuana], when the offender knows or
has reasonable cause to believe that the [marijuana] is intended for sale or resale by the offender
or another person.” Because the amount of marijuana exceeded one thousand grams, but was
less than five thousand grams, trafficking was a felony of the third degree under R.C.
2925.03(C)(3)(d).
{¶41} R.C. 2901.22(B) states, in part, that “[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 * * *.”
{¶42} 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 substance
through ownership or occupation of the premises upon which the thing or substance is found.”
“[A] person may knowingly possess a substance or object through either actual or constructive
possession.” 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 possession.” State v.
Hankerson, 70 Ohio St.2d 87 (1982), syllabus. “Inherent in the notions of dominion and control
is some authority over the object, not merely the ability to have access to it.” State v. Carlton,
9th Dist. Lorain No. 12CA010219, 2013-Ohio-2788, ¶ 11. “The State may prove dominion and
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control through circumstantial evidence.” State v. Rucker, 9th Dist. Summit No. 25081, 2010-
Ohio-3005, ¶ 30.
{¶43} The jury also found that $23,980.00 of the $24,475.00 seized by the police was
subject to forfeiture under the R.C. 2941.1417 forfeiture specification to the trafficking offense.
The $495.00 in cash that was found on Mr. Palmer’s person was not subject to forfeiture. “Mere
possession of money is not unlawful. Thus, the money is not contraband per se. Further, the
burden is on the state to show that the money had any connection to the underlying criminal
offense.” (Citations omitted.) State v. Standen, 9th Dist. Lorain No. 07CA009123, 2007-Ohio-
5477, ¶ 9.
{¶44} As Mr. Palmer only challenges the sufficiency of the evidence concerning (1) the
connection between the money and his trafficking conviction, and (2) his possession of the UPS
parcel, we will limit our analysis to the relevant evidence relating to those two issues.
{¶45} The State proceeded at trial on a theory that Mr. Palmer was involved in
trafficking marijuana by shipping cash to California in exchange for marijuana being shipped to
him from California. The police seized 1,670.2 grams of marijuana and $24,475.00 in cash
overall. Detective Chris Carney testified that his K-9 partner “Cruiser” alerted to a FedEx parcel
sent by Mr. Palmer to California. After procuring a search warrant, he opened the parcel and
discovered $18,000.00 in cash. Detective Nicholas Gray testified on cross-examination that for a
K-9 to alert on money, the money would have to have been around narcotics in order to pick up
the odor.
{¶46} The following day, Detective Carney went to Mr. Palmer’s house with two other
detectives to speak to him about the FedEx parcel. Detective Carney testified that he smelled
marijuana as soon as Mr. Palmer opened the front door and Mr. Palmer admitted that he had just
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smoked marijuana. Mr. Palmer pointed to an ashtray on a table and Detective Carney saw a
“blunt” in the ashtray. Mr. Palmer also admitted that he had shipped the $18,000.00 to
California. He provided the officers with different explanations for shipping the money and later
said it was for a marijuana investment in California. While talking to Mr. Palmer inside the
house, Detective Carney could see a jar of marijuana on the dining room table and a marijuana
grinder on the mantel of the fireplace.
{¶47} While awaiting a search warrant for the house, a UPS truck arrived and the driver
dropped a parcel off on Mr. Palmer’s front porch. The UPS parcel was addressed to Greg
Palmer. During their investigation, the officers looked up Mr. Palmer’s address, but found no
one by the name of Greg Palmer listed as a resident there. Detective Carney testified that in the
last six years he has not interdicted a single parcel containing narcotics that had the legal name of
the recipient on it because it is easier for people to distance themselves from the parcel and claim
that it does not belong to them. Detective Gray also testified that people typically have narcotics
shipped to their house under a different name to protect themselves if law enforcement intercepts
the parcel. Detective Gray also testified on cross-examination that it is different with currency
because a person will not be able to claim an interdicted parcel containing money if it has fake
names on it. Detective Carney testified that it is common for drugs and money to both be
shipped at the same time as an exchange.
{¶48} Detective Carney testified that he asked Mr. Palmer if he could open the UPS
parcel and Mr. Palmer said, “No.” Mr. Palmer told the detective, “You need to get a warrant.”
The officers procured additional search warrants for both Mr. Palmer’s house and the UPS
parcel. Detective Carney testified that miscellaneous clothes and a hollowed-out pillow
containing approximately three pounds of marijuana in vacuum-sealed Ziploc bags were
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discovered in the UPS parcel. Detective Gray testified that he found $5,980.00 in cash inside of
a work boot or shoe in an upstairs bedroom of the house. He also found a vacuum-sealed bag
containing one pound of marijuana underneath clothes at the bottom of a clothes basket.
Detective Carney testified that the marijuana packages found in the bedroom and in the UPS
parcel were all in the same type of vacuum-sealed, Ziploc bags. Detective Carney also testified
that a few additional grams of marijuana, a marijuana brownie, a couple digital scales, a food
saver system, bags, bubble wrap, and mail with Mr. Palmer’s name and address on it were also
found in Mr. Palmer’s house.
{¶49} After viewing the evidence in a light most favorable to the prosecution, we
conclude that a rational trier of fact could have found beyond a reasonable doubt that (1) the
money discovered in the FedEx parcel and in Mr. Palmer’s house was connected to Mr. Palmer’s
trafficking in marijuana offense, and (2) Mr. Palmer had constructive possession of the UPS
parcel delivered to his house.
{¶50} The evidence, if believed, established that the seized and forfeited money was
connected to Mr. Palmer’s trafficking offense. See Standen, 2007-Ohio-5477, at ¶ 9. Mr.
Palmer shipped $18,000.00 in cash via FedEx to California and a UPS parcel from California
containing three pounds of marijuana in vacuum-sealed bags arrived on his doorstep the next
day. Mr. Palmer eventually admitted that he sent the money to California for a marijuana
investment. The UPS parcel was addressed to Greg Palmer, but the detectives found no evidence
of anyone by that name living at Mr. Palmer’s house. Two detectives testified that drug
traffickers commonly use false names on parcels when shipping drugs. A similarly-packaged,
vacuum-sealed bag of marijuana was found in Mr. Palmer’s house along with $5,980.00 in cash
and other contraband associated with the trafficking of drugs.
18
{¶51} The evidence, if believed, also established that although Mr. Palmer never
physically accessed the UPS parcel, he constructively possessed it. The UPS parcel was
delivered to the front porch of Mr. Palmer’s house. Mr. Palmer refused Detective Carney’s
request to open it and then told the detective to get a warrant. These statements are assertions of
authority over the parcel sufficient to establish dominion and control and, therefore, constructive
possession of the UPS parcel. See Hankerson, 70 Ohio St.2d at syllabus; see also Carlton, 2013-
Ohio-2788, at ¶ 11.
{¶52} Mr. Palmer’s fifth and sixth assignments of error are overruled.
III.
{¶53} Mr. Palmer’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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.
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.
19
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JAMES R. WILLIS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.