[Cite as State v. Gist, 2014-Ohio-3274.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-12-1355
Appellee Trial Court No. CR0201201678
v.
Lamontie E. Gist DECISION AND JUDGMENT
Appellant Decided: July 25, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Jennifer Liptack-Wilson, Assistant Prosecuting Attorney,
for appellee.
James J. Popil, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Lamontie E. Gist appeals a December 6, 2012 judgment of the Lucas
County Court of Common Pleas convicting him of possession of cocaine, a violation of
R.C. 2925.11(A) and (C)(4)(a), a fifth degree felony, and having weapons while under
disability, a violation of R.C. 2923.13(A)(3) and third degree felony. The convictions are
based on guilty verdicts returned by a jury at trial in October 2012. The jury also
returned a not guilty verdict on a charge of trafficking in cocaine in violation of R.C.
2925.03(A)(2) and (C)(4)(a), a fifth degree felony.
{¶ 2} In November 2011, the Vice Narcotics Unit of the Toledo Police
Department conducted an investigation of reported sales of crack cocaine or cocaine out
of apartment No. 204, 2115 Collingwood Boulevard in Toledo, Ohio. Using a
confidential informant, the Vice Narcotics Unit secured a controlled buy of crack cocaine
at the residence on November 28, 2011 and, afterwards, secured a no-knock search
warrant to search the premises.
{¶ 3} Members of the Toledo Police Vice Narcotics Unit and a Toledo Police
SWAT (Special Weapons and Tactics) team together conducted the search on
November 29, 2011. The SWAT team entered the apartment first and secured the area.
Members of the Vice Narcotics Unit followed and conducted the search. Appellant was
present in the apartment at the time of the search.
{¶ 4} Officer Paul Marchyok of the Toledo Police Department testified at trial
that he was the first SWAT team member through the door. Officer Marchyok testified
that he saw appellant rising from a chair in the living room and then going to the floor.
Detective Shawn Mohler of the Vice Narcotics Unit testified that he found what appeared
to be crack cocaine in a plastic bag located on the floor near the front left leg of the chair
2.
where appellant had been. A lab report, admitted in evidence at trial, disclosed that the
bag contained an off-white rock material consisting of 3.17 grams of cocaine.
{¶ 5} Detective Eric Sweat was the lead detective on the narcotics investigation.
Detective Sweat testified that he found a loaded .45 caliber gun on a TV stand on a table
in the living room near appellant. A lab report from the Toledo Police Regional Crime
Laboratory was admitted into evidence at trial. The report identified the weapon as a
Para-Ordnance Model P13-45 caliber pistol. The report also stated that the pistol was test
fired and determined to be operable.
{¶ 6} Three individuals were found in the apartment at the time of the search:
appellant, Jackie Green, and Darrell Bell. Appellant was in the living room. Green was
in the kitchen. Bell was in a bedroom. Appellant does not dispute that he was sitting in a
recliner chair in the living room when the search was conducted or that a bag containing
3.17 grams of cocaine was found by police near the recliner during the search.
{¶ 7} Sergeant Miller of the Vice Narcotics Unit testified that he searched
appellant and discovered cash on him of $370. He testified that the typical sale amount
for crack cocaine is $20. According to Sergeant Miller, the cash was significant, not for
the amount of cash, but for the denominations of the bills. The cash included six $20
bills, nine $10s, and 11 $5s.
{¶ 8} Appellant asserts two assignments of error on appeal:
1. The convictions against appellant Lamontie E. Gist were against
the manifest weight of the evidence.
3.
2. The convictions against appellant Lamontie E. Gist were not
supported by the sufficiency of the evidence.
{¶ 9} In challenging his convictions, appellant relies on the testimony of Jackie
Green. Green testified that appellant had been at the apartment only 3-4 minutes when
police arrived and that the drugs found by police did not belong to appellant. According
to Green, Darrell Bell purchased the drugs and Bell shared them with him. Green also
testified that Bell placed the gun on the top shelf of the TV stand earlier that afternoon.
{¶ 10} Jackie Green testified that he and appellant have been friends for years.
Evidence at trial included evidence of prior felony convictions of Green. To establish an
element of the having weapons while under disability charge against appellant, the state
submitted into evidence at trial a 2001 judgment of conviction of appellant on two felony
offenses: (1) attempted possession of marijuana, a violation of R.C. 2923.02(A) and
2925.11(A)(C)(3)(d) and a fourth degree felony, and (2) carrying a concealed weapon, a
violation of R.C. 2923.12 and a fourth degree felony.
{¶ 11} We consider appellant’s challenge to his convictions on sufficiency of the
evidence grounds first.
Sufficiency of the Evidence
{¶ 12} Sufficiency of the evidence is “‘that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally
sufficient to support a jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary (6 Ed.1990)
4.
1433. In State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), the Ohio Supreme
Court outlined the analysis required to apply this standard:
An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable
doubt. 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560, followed.) Id. at paragraph two of the syllabus.
Sufficiency of the evidence is purely a question of law. Thompkins at 386.
Possession of Cocaine
{¶ 13} Appellant challenges both convictions on sufficiency of the evidence
grounds. Appellant was convicted of possession of cocaine in violation of R.C
2925.11(A) and (C)(4)(a), a fifth degree felony. R.C. 2925.11(A) states: “No person
shall knowingly obtain, possess, or use a controlled substance or a controlled substance
analog.” R.C. 2925.11(C)(4) applies where the possessed drug is cocaine.
{¶ 14} Appellant contends that the evidence at trial was insufficient to prove the
“knowingly” and “possession” elements of R.C. 2925.11(A). Appellant argues that there
was no evidence offered at trial to suggest that the cocaine seized by police was his.
5.
{¶ 15} Possession may be actual or constructive. State v. Wolery, 46 Ohio St.2d
316, 329, 348 N.E.2d 351 (1976). To establish constructive possession of the drugs, the
state must establish that the defendant was able to exercise dominion and control over
them. Id.; State v. Durr, 6th Dist. Sandusky No. S-97-056, 2000 WL 1033033, *4
(July 28, 2000). Evidence that a defendant was located in very close proximity to readily
usable drugs may constitute circumstantial evidence to support a finding of constructive
possession. State v. Rutledge, 6th Dist. Lucas No. L-12-1043, 2013-Ohio-1482, ¶ 11;
Durr at *4; State v. Morales, 5th Dist. Licking No. 2004 CA 68, 2005-Ohio-4714, ¶ 50.
{¶ 16} “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.” R.C. 2901.22(B). Whether a person knowingly possessed a controlled
substance is to be “determined from all the attendant facts and circumstances.” State v.
Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998).
{¶ 17} The testimony of Officer Marchyok and Detective Mohler together, if taken
as true, establish that when police stormed through the door of the apartment, appellant
was seen rising from a chair in the living room where crack cocaine was found. The
cocaine was found in a plastic baggie at the foot of the chair. At that time appellant was
alone in the living room.
{¶ 18} Viewing the evidence most favorably to the prosecution, we conclude that a
rational trier of fact could have found that appellant knowingly constructively possessed
6.
the 3.17 gram bag of crack cocaine that was found in the living room. Accordingly, we
conclude there was sufficient evidence to support appellant’s conviction for possession of
cocaine in violation of R.C. 2925.11(A) and (C)(4)(a).
Having Weapons While Under Disability
{¶ 19} Appellant contends that his conviction for having weapons while under
disability, a violation of R.C. 2923.13(A)(3) is also not supported by sufficient evidence.
Appellant argues that evidence was lacking demonstrating that he had knowledge of the
gun or that he possessed or had constructive possession of it.
{¶ 20} R.C. 2923.13(A)(3) provides:
2923.13 Having weapons while under disability
(A) Unless relieved from disability as provided in section 2923.14 of
the Revised Code, no person shall knowingly acquire, have, carry, or use
any firearm or dangerous ordnance, if any of the following apply:
***
(3) The person is under indictment for or has been convicted of any
felony offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse or has been adjudicated a
delinquent child for the commission of an offense that, if committed by an
adult, would have been a felony offense involving the illegal possession,
use, sale, administration, distribution, or trafficking in any drug of abuse.
7.
{¶ 21} Appellant argues that the evidence at trial was insufficient to establish that
he knowingly possessed the .45 caliber handgun. Appellant contends there was no
evidence that he had knowledge of the gun or that he possessed or constructively
possessed the weapon.
{¶ 22} Constructive possession can be sufficient to support a conviction of having
weapons under disability. State v. Munn, 6th Dist. Lucas No. L-08-1363, 2009-Ohio-
5879, ¶ 47-48; State v. Hardy, 60 Ohio App.2d 325, 327, 397 N.E.2d 773 (8th Dist.1978).
Viewing the evidence most favorably to the prosecution, we conclude that any rational
trier of fact could have found that appellant was aware of the presence of the weapon and
had immediate access to it. The weapon was near where appellant was sitting and where
the bag of cocaine was located. If appellant had played video games as contended by
Jackie Green, appellant would also have been looking at the television and the TV stand
where the gun had been placed. We conclude there was sufficient evidence to support
appellant’s conviction for having weapons while under disability, a violation of R.C.
2923.13(A)(3).
{¶ 23} We find assignment of error No. 2 not well-taken.
Manifest Weight of the Evidence
{¶ 24} Under assignment of error No. 1, appellant challenges both convictions,
asserting that the jury verdicts on which they are based are against the manifest weight of
the evidence.
8.
{¶ 25} Where it is claimed that a verdict is against the manifest weight of the
evidence, an appellate court acts as a “thirteenth juror,” weighs the evidence, and may
disagree with a factfinder’s conclusions on conflicting testimony. Thompkins, 78 Ohio
St.3d. at 387, 678 N.E.2d 541; State v. Lee, 6th Dist. No. L-06-1384, 2008-Ohio-253,
¶ 12:
The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must
be reversed and new trial ordered. Thompkins at 387, 678 N.E.2d 541,
quoting with approval, State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1983).
{¶ 26} Reversals on this ground are granted “only in the exceptional case in which
the evidence weighs heavily against conviction.” Id. “There is a presumption that the
findings of the trier-of-fact were indeed correct.” Seasons Coal Co., Inc. v. Cleveland, 10
Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Fundamental to the analysis is that
“[j]udgments supported by some competent, credible evidence going to all the essential
elements of the case will not be reversed by a reviewing court as being against the
manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d
279, 376 N.E.2d 578 (1978), syllabus.
9.
{¶ 27} With respect to the possession of cocaine conviction, appellant contends
that the verdict is against the manifest weight of the evidence because there was no
evidence that the cocaine belonged to him and because appellant had been in the
apartment only for a few minutes. However, the undisputed evidence places a 3.17 gram
bag of rock cocaine at the chair where appellant had been sitting when police arrived.
The drugs were in easy reach of appellant. It is not necessary for the state to prove
appellant owned the drugs to prove constructive possession. State v. Cortez, 6th Dist.
Lucas No. L-05-1112, 2007-Ohio-96, ¶ 25.
{¶ 28} We defer to the factfinder in its determination of the credibility of Jackie
Green’s testimony that appellant neither owned or possessed the drugs. As the cocaine
was found at the foot of his chair, under the totality of the circumstances a rational trier of
fact could reasonably find that appellant had knowledge of the presence of the drugs and
constructive, if not actual, possession of them.
{¶ 29} We find appellant’s contention that his conviction for possession of cocaine
is against the manifest weight of the evidence is without merit.
{¶ 30} With respect to having a weapon under disability charge, appellant argues
that the testimony of Jackie Green demonstrated that he had no knowledge that a gun was
present in the apartment. Green testified that the gun belonged to Darrell Bell and that
Bell placed the weapon on the TV stand that afternoon. Further appellant contends that
the evidence demonstrated that the gun was outside his immediate reach.
10.
{¶ 31} In our view, a factfinder could reasonably find that appellant was aware of
the presence of the gun and had immediate access to it. The evidence was clear that the
living room was small. Both Detective Sweat and Jackie Green testified that the handgun
was found on a shelf of the TV stand in the room. The television was near the recliner
chair where appellant had been sitting and where the drugs were found. Appellant would
be looking in the direction of the TV when playing video games.
{¶ 32} There was evidence at trial that Bell was frail, unsteady on his feet, and
could barely walk. He was assisted in walking by police. Given his physical condition, a
trier of fact might find it implausible to believe that Bell placed the weapon in the living
room to use himself.
{¶ 33} We find competent credible evidence in the record supports the jury verdict
finding appellant guilty of having a weapon while under a disability. We conclude that
appellant’s contention that the verdict is against the manifest weight of the evidence is
without merit.
{¶ 34} We find assignment of error No. 1 not well-taken.
{¶ 35} We affirm the judgment of the Lucas County Court of Common Pleas. We
order appellant to pay the costs of this appeal, pursuant to App.R. 24.
Judgment affirmed.
11.
State v. Gist
C.A. No. L-12-1355
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.
_______________________________
Stephen A. Yarbrough, P.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.sconet.state.oh.us/rod/newpdf/?source=6.
12.
State v. Gist
Combined Opinion