State v. Cooper

[Cite as State v. Cooper, 2011-Ohio-5017.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24321

vs. : T.C. CASE NO. 09CR4069/1

JAYTRON COOPER : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 30th day of September, 2011.

. . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Timothy J. Cole, Asst. Pros.
Attorney, Atty. Reg. No. 0084117, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee

Andrea G. Ostrowski, Atty. Reg. No. 0075318, 25 East Central Avenue,
Suite 4, Springboro, OH 45066
Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Defendant, Jaytron Cooper, appeals from his conviction

and sentence for possession of crack cocaine and trafficking in

marijuana.

{¶ 2} On December 2, 2009, at 6:53 p.m., an unidentified male
 2

called 911 and reported that he had heard six gunshots and saw

three African-American males run into the apartment at 5150

Northcutt Place in Harrison Township. Montgomery County sheriff’s

deputies were dispatched to the scene. Deputy Hutson went to the

back door while another deputy watched the front door. Deputy

Hutson could hear a television or radio playing inside the apartment

and, after Hutson knocked on the door several times, without any

response, the volume was turned up.

{¶ 3} At 7:11 p.m., a person identifying himself as Shawn

Parker called 911. Parker reported that his son had sent him a

text message saying that he was being robbed and held against his

will in the apartment at 5150 Northcutt Place. The police

dispatcher advised deputies on the scene that the caller’s son

said he could see the responding officers outside, and that he

was being held inside a closet upstairs.

{¶ 4} While standing by the back door, Deputy Hutson saw a

male briefly stick his head out of second story bathroom window

and then quickly close that window. Deputy Hutson knocked louder

on the back door to overcome the sound of the radio or television.

Moments later, Defendant opened the door. When Defendant saw

the officers, he immediately slammed the door shut. Believing

that emergency circumstances existed justifying a warrantless

entry into the residence, officers entered the apartment.
 3

{¶ 5} Inside the residence police found six men in the living

room, another man coming down the stairs, and another man upstairs.

Officers immediately began searching for the victim of the

reported robbery/abduction, but no victim was found. While in

the kitchen area, police noticed a very strong odor of marijuana

and observed, in plain view, a plastic cup half full of marijuana

lying in an open trash can. A second search for the victim was

conducted by police because none of the people present admitted

to being the victim of a robbery/abduction. During that second

search police looked inside closets and under the bed. In a first

floor closet, police discovered a bulletproof vest. In an upstairs

bedroom, when police lifted the mattress to look under the bed,

they discovered several firearms. Police recognized many of the

individuals in the apartment as persons who had previously been

trespassed off the property, and they were arrested.

{¶ 6} After police removed all of the individuals from that

apartment, they obtained a search warrant for the premises. During

execution of that search warrant, in the upstairs bedroom police

recovered from under the mattress the multiple firearms they had

previously seen while searching for the victim. Also in that

bedroom, police discovered an electric utility bill for the

residence in Defendant’s name, and a cigar box inside a tub full

of men’s clothing. Inside that cigar box police found a small
 4

plastic baggie containing crack cocaine, and a large plastic baggie

filled with twelve smaller baggies that each contained a small

amount of marijuana. The small baggies of marijuana were packaged

for sale. A search of the remainder of that apartment produced

baggies with pills in them, digital scales, and other drugs and

guns. After the search, Defendant told Detective Reed that he

lived at that apartment and had been home sleeping since 9:00 a.m.

{¶ 7} Defendant was indicted on one count of possession of

crack cocaine, less than one gram, in violation of R.C. 2925.11(A),

and one count of trafficking in marijuana in violation of R.C.

2925.03(A)(2). Three one-year firearm specifications, R.C.

2941.141, were attached to each count. Defendant filed a motion

to suppress the evidence, which the trial court overruled following

a hearing. At trial, Defendant’s theory was that the drugs and

guns found in his apartment were not his and must have been put

there by someone else who was present.

{¶ 8} Defendant was found guilty of both charges and two of

the three firearm specifications attached to each count. The trial

court sentenced Defendant to concurrent one year prison terms for

possession of crack cocaine and trafficking in marijuana, and

merged all of the firearm specifications and imposed one additional

and consecutive one year term on those, for a total sentence of

two years.
 5

{¶ 9} Defendant timely appealed to this court from his

conviction and sentence.

FIRST ASSIGNMENT OF ERROR

{¶ 10} “THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S

MOTION TO SUPPRESS.”

{¶ 11} Defendant argues that the trial court erred in denying

his motion to suppress the evidence because his Fourth Amendment

rights were violated when police unlawfully entered his home

without a warrant and conducted a warrantless search of the

premises. If the initial entry by police into Defendant’s home

was unlawful, that tainted the warrant which authorized the

subsequent search which produced the cocaine and marijuana that

form the basis for the charges in this case, and that evidence

must be suppressed. The trial court concluded that police entry

into Defendant’s home was lawful because it fell within a

well-recognized exception to the warrant requirement, the exigent

circumstances or emergency exception, and overruled the motion

to suppress on that basis.

{¶ 12} In State v. Overholser (July 25, 1997), Clark App. No.

96CA0073, this court stated:

{¶ 13} “The Fourth Amendment to the United States Constitution

protects people from ‘unreasonable’ searches and seizures.

Warrantless searches and seizures are per se unreasonable under
 6

the Fourth Amendment, subject to only a few well recognized

exceptions. Katz v. United States (1967), 389 U.S. 347, 88 S.Ct.

507, 19 L.Ed.2d 576. One such recognized exception is the exigent

circumstances or ‘emergency’ exception. Pursuant to that rule,

a police officer, even absent a warrant or probable cause, may

lawfully enter a structure, including a private home, when the

totality of the facts and circumstances known to the officer gives

rise to a reasonable belief that immediate entry is necessary to

either protect that property or assist people inside who may be

in danger or in need of immediate aid. Ringel, Searches, Seizures,

Arrests and Confessions, Section 10.5(a); Katz, Ohio Arrest, Search

and Seizure, Section 10.01-10.03.

{¶ 14} “A myriad of factual circumstances may give rise to an

emergency situation and the corresponding need for an immediate

warrantless entry. See Wayne v. United States (D.C.Cir., 1963),

318 F.2d 205, 212; Ringel, Searches, Seizures, Arrests and

Confessions, Section 10.5(a), fn 41 and 42. When police reasonably

believe that a burglary is in progress or has occurred at a

particular structure, an immediate warrantless entry undertaken

to investigate and protect that property and assist any victims

inside who may be in danger or in need of immediate aid has been

upheld by the courts as a reasonable search. See Lafave, Search

and Seizure, Section 6.6(a) and (b).
 7

{¶ 15} “The concept of emergency circumstances justifying an

immediate warrantless entry by police has long been recognized

in Ohio. State v. Hyde (1971), 26 Ohio App.2d 32, 268 N.E.2d 820;

State v. Roach (1982), 8 Ohio App.3d 42, 455 N.E.2d 1328; State

v. Morris (November 29, 1989), Montgomery App. No. 10992,

unreported. However, the warrantless entry and search must be

limited in duration and scope to the purpose justifying that

intrusion, including only that which is necessary to alleviate

the emergency and the dangers associated therewith. Mincey v.

Arizona (1978), 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290. During

a warrantless emergency entry police may seize contraband which

is in plain view. Michigan v. Tyler (1978), 436 U.S. 499, 98 S.Ct.

1942, 56 L.Ed.2d 486; Thompson v. Louisiana (1984), 469 U.S. 17,

105 S.Ct. 409, 83 L.Ed.2d 246.”

{¶ 16} Defendant challenges the initial warrantless entry into

his home by police. Thus, the question becomes whether at the

time police entered Defendant’s home they had a reasonable belief,

based upon the totality of the facts and circumstances, that there

might be a person inside that residence who was in danger or in

need of immediate aid. Overholser. Based upon the particular

facts of this case, we answer that question in the affirmative

and conclude, as did the trial court, that police entry into

Defendant’s home was reasonable and constitutionally permissible.
 8

{¶ 17} Police were dispatched to Defendant’s home as a result

of a 911 call wherein an anonymous caller reported that he heard

six gunshots and saw three African-American males run into the

apartment at 5150 Northcutt Place. Police repeatedly knocked on

the door for some 20-25 minutes but no one answered the door.

Police were aware there were people inside that apartment because

in response to the police knocking, a radio or television inside

the apartment was turned up louder.

{¶ 18} Shortly after officers arrived on the scene, a second

911 call came in. This second call was made by a person who

identified himself as Shawn Parker. Calls from identified citizen

informants are recognized as possessing greater reliability than

tips received from anonymous callers or known criminal informants,

and therefore a strong showing as to other indicia of reliability

may be unnecessary. City of Maumee v. Weisner, 87 Ohio St.3d 295,

1999-Ohio-68. Parker reported that his son had sent him a text

message saying he was being held against his will upstairs in the

apartment at 5150 Northcutt Place, and the occupants had attempted

to rob him. The police dispatcher advised deputies at the scene

that according to Parker, his son could see the responding officers

outside, and that his son was being held in a closet upstairs.

{¶ 19} While standing by the back door, Deputy Hutson looked

up and observed a man stick his head out of a second story bathroom
 9

window and then quickly close that window. Deputy Hutson began

knocking on the door more loudly. In response, Defendant finally

opened the door. When Defendant observed the officers, he

immediately slammed the door shut.

{¶ 20} Under these facts and circumstances, it was reasonable

for police to believe that the reported robbery victim who was

being held hostage, as well as the perpetrators of the robbery,

were still inside the home, and that the victim might be in danger

or in need of immediate aid. Overholser. Accordingly, police

were privileged to enter the home without a warrant for the sole

purpose of looking for the victim and rendering any assistance

the victim might need. Furthermore, the brief 20-25 minute delay

here between the 911 calls and police entry into Defendant’s home

does not negate the exigency that existed. State v. Berry, 167

Ohio App.3d 206, 2006-Ohio-3035.

{¶ 21} Defendant argues that even if police were justified in

initially entering Defendant’s home to search for the reported

robbery victim that was being held hostage, the second search of

the home police conducted exceeded the duration and scope of the

purpose justifying the initial intrusion, to alleviate the

emergency and the dangers associated therewith. Overholser.

{¶ 22} The evidence demonstrates that upon entering Defendant’s

home, police immediately conducted an initial search for the
 10

victim. During that initial search, police rounded up all of the

people that they found inside the home. When asked by police,

none of the people present came forward and admitted to being the

robbery/abduction victim. Based upon information contained in

the second 911 call, Sergeant Adkins believed, and reasonably so,

that there could still be another person inside the home, a robbery

victim who was being held hostage in a less visible location such

as a closet or under a bed, who might be injured or in need of

immediate aid. Berry. Accordingly, Sergeant Adkins ordered a

second search of the home for the victim. This time police looked

inside closets, and under the bed, but properly limited the scope

of their search to places where a person or body can hide or be

hidden. It was during this second search that police discovered

several firearms when they lifted a mattress to look under the

bed, and marijuana in plain view in the kitchen.

{¶ 23} As we noted in Overholser,

{¶ 24} “Every Fourth amendment question turns on the issue of

reasonableness, and every determination of reasonableness is sui

generis. When in an investigation of crime a search and seizure

is impelled by reasons of genuine physical danger to any person,

it presents concerns and needs that are not easily served by a

slow, deliberative process. Actions are to be judged on a common

sense standard, . . .”
 11

{¶ 25} Here, applying a common sense review to all of the facts

and circumstances known to police on the scene, we conclude that

their entry into Defendant’s home was reasonable and lawful. The

contraband police observed in plain view during their warrantless

emergency entry could be seized. Overholser. Their observations

could likewise be the basis for a warrant permitting seizure of

the contraband, which is what occurred. Defendant’s Fourth

Amendment rights were not violated, and the trial court properly

overruled his motion to suppress the evidence.

{¶ 26} Defendant’s first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

{¶ 27} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

ADMITTED HIGHLY PREJUDICIAL EVIDENCE THAT WAS NOT PROBATIVE.”

{¶ 28} Defendant argues that the trial court abused its

discretion by admitting into evidence, over his objection, various

items found in Defendant’s apartment during execution of the search

warrant, including baggies and bottles of pills, a bulletproof

vest, a video surveillance camera, and loose ammunition.

Defendant claims that these items were never connected to him and

are not relevant to the specific charges against him. Defendant

argues that whatever minimal probative value these items may have

had was far outweighed by the danger of unfair prejudice, and thus

this evidence should therefore have been excluded. Evid.R.
 12

403(A). Defendant further argues that the prosecutor used these

items found in Defendant’s apartment as a basis to suggest that

Defendant engages in a lot of criminal activity, including drug

dealing, and that he was acting in conformity with that bad

character on this particular occasion, in violation of Evid.R.

404(B).

{¶ 29} With respect to the admission or exclusion of evidence,

the trial court has broad discretion and its decision in such

matters will not be disturbed by a reviewing court absent an abuse

of discretion that has caused material prejudice. State v. Noling,

98 Ohio St.3d 44, 781 N.E.2d 88, 2002-Ohio-7044.

{¶ 30} “‘Abuse of discretion’ has been defined as an attitude

that is unreasonable, arbitrary or unconscionable. Huffman v. Hair

Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482

N.E.2d 1248, 1252. It is to be expected that most instances of

abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or

arbitrary.

{¶ 31} “A decision is unreasonable if there is no sound

reasoning process that would support that decision. It is not

enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would
 13

support a contrary result.” AAAA Enterprises, Inc. v. River Place

Community Redevelopment (1990), 50 Ohio St.3d 157, 161.

{¶ 32} Evid.R. 401 defines relevant evidence:

{¶ 33} “‘Relevant evidence’ means evidence having any tendency

to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.” Evidence which is not relevant

is not admissible. Evid.R. 402. Furthermore, Evid.R. 403(A)

provides:

{¶ 34} “Exclusion mandatory. Although relevant, evidence is

not admissible if its probative value is substantially outweighed

by the danger of unfair prejudice, of confusion of the issues,

or of misleading the jury.”

{¶ 35} Evid.R. 404(B) states:

{¶ 36} “Other crimes, wrongs or acts. Evidence of other

crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.”

{¶ 37} In State v. Williams, Montgomery App. No. 20271,

2005-Ohio-1597, the defendant was charged with possession of both

heroin and cocaine. At trial, the State admitted over the
 14

defendant’s objection various other items found in defendant’s

apartment during a drug raid, including numerous drugs, scales,

and two loaded firearms, as well as cash found on defendant’s

person. Defendant argued that the trial court erred in admitting

these items because they were never connected to him and do not

form any part of the charges against him, and that whatever minimal

probative value the items may possess is far outweighed by the

danger of unfair prejudice. In concluding that the trial court

properly admitted these items because they were relevant and

admissible to prove that Defendant knew the purse he possessed

and attempted to conceal contained controlled substances, we

stated:

{¶ 38} “{¶ 60} Where, as in this case, the collateral matters

in Evid.R. 404(B) such as knowledge and plan are at issue in the

case, evidence probative of them is admissible per Evid.R. 404(B)

to prove the offense charged, notwithstanding that the same

evidence might also prove another, uncharged offense. Of course,

the trial court must exclude the evidence if its probative value

is substantially outweighed by the danger of unfair prejudice,

confusion of the issues or misleading the jury. Evid.R. 403(A).

{¶ 39} “{¶ 61} The State was obligated to prove that Defendant

knew or was probably aware that the purse he had in his possession

and threw out of the window during this drug raid contained
 15

controlled substances. It is common knowledge that in locations

where drug activity is prevalent, drugs, scales, weapons and large

sums of money are often present. The Ohio Supreme Court has

recognized that a connection exists between drugs and guns to such

an extent that if drugs are present, it is reasonable to assume

that weapons may also be present and the suspect(s) may be armed.

State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162, 1993-Ohio-186.”

{¶ 40} The same is true in this case. Defendant was charged

with violations of R.C. 2925.11(A) and 2925.03(A)(2), which

required the State to prove that Defendant knowingly possessed

crack cocaine, and knowingly prepared marijuana for distribution,

when he knew the marijuana was intended for sale. The various

pills, guns, ammunition, bulletproof vest and video surveillance

camera found inside Defendant’s apartment during this drug raid

were relevant and admissible to prove Defendant’s knowledge, plan,

purpose/intent with respect to possessing controlled substances

and reselling them. Williams. Furthermore, the probative value

of this evidence is not substantially outweighed by the dangers

of unfair prejudice. Id. No abuse of discretion is demonstrated

with respect to the trial court’s admission of this evidence.

{¶ 41} Defendant’s second assignment of error is overruled.

THIRD ASSIGNMENT OF ERROR

{¶ 42} “THE TRIAL COURT ERRED WHEN IT LIMITED
 16

CROSS-EXAMINATION.”

{¶ 43} Defendant argues that the trial court abused its

discretion in not allowing defense counsel to cross-examine the

police officers concerning their knowledge of the criminal

histories and reputation of the various individuals who were

present inside Defendant’s apartment when police entered.

Defendant wanted to introduce that evidence to support his theory

that it was one or more of the other people who were present, and

not Defendant, who hid the drugs and guns inside Defendant’s

apartment.

{¶ 44} The trial court allowed Defendant to elicit the names

of the other people present, and allowed Deputy Zollers to testify

that he recognized some of the individuals in Defendant’s apartment

and knew them from the community, and he classified them as “bad

guys.” The court also permitted Defendant to advance his argument

that some of the other people present may have placed the guns

and drugs in Defendant’s apartment. The court, however, excluded

any testimony by the officers concerning their knowledge of the

various individual’s criminal histories or reputation because that

information was “irrelevant and immaterial” to the issues in the

case.

{¶ 45} In State v. Foust, Montgomery App. No. 20470,

2005-Ohio-440, at ¶13-14, we stated:
 17

{¶ 46} “The constitutional right of cross-examination includes

the right to impeach a witness's credibility. State v. Green, 66

Ohio St.3d 141, 1993-Ohio-26; State v. Brewer (August 24, 1994),

Montgomery App. No. 13866; Evid.R. 611(B). Unlike Federal Crim.R.

611, which generally limits cross-examination to matters raised

during direct, Ohio Crim.R. 611(B) permits cross-examination on

all relevant issues and matters relating to credibility.

Weissenberger, Ohio Evidence 2005 Courtroom Manual, at p. 245-246.

Possible bias, prejudice, pecuniary interest in the litigation

or motive to misrepresent facts, are matters that may affect

credibility. Evid.R. 616(A); State v. Ferguson (1983), 5 Ohio St.3d

160, 450 N.E.2d 265. The denial of full and effective

cross-examination of any witness who identifies Defendant and the

perpetrator of the offense, is the denial of the fundamental

constitutional right of confrontation essential to a fair trial.

State v. Hannah (1978), 54 Ohio St.2d 84, 374 N.E.2d 1359; Brewer,

supra.

{¶ 47} “On the other hand, trial courts have wide latitude in

imposing reasonable limits on the scope of cross-examination based

upon concerns about harassment, prejudice, confusion of the issues,

the witness's safety, or repetitive, marginally relevant

interrogation. Delaware v. Van Arsdall (1986), 475 U.S. 673, 106

S.Ct. 1431, 89 L.Ed.2d 674. It is within the trial court's broad
 18

discretion to determine whether testimony is relevant, and to

balance its potential probative value against the danger of unfair

prejudice. In re Fugate (2000), Darke App. No. 1512. We will not

interfere with the trial court's decision in those matters absent

an abuse of discretion. Id. An abuse of discretion means more than

a mere error of law or an error in judgment. It implies an arbitrary,

unreasonable, unconscionable attitude on the part of the trial

court. Id.”

{¶ 48} We agree with the trial court that the issues about which

Defendant wished to cross-examine the police officers, their

knowledge concerning the criminal histories and reputation of the

other people present inside Defendant’s apartment, had little if

any relevance to whether Defendant knowingly possessed cocaine

and knowingly prepared for distribution marijuana, knowing it was

intended for sale. Such collateral matters would have injected

into this case confusion of the issues by placing these other

individuals who were present on trial, when they were not defendants

or even witnesses in this case. The information being sought by

Defendant was not for the purpose of impeaching the credibility

of the police officers or anyone else who testified.

{¶ 49} Whatever marginal probative value these extraneous areas

of inquiry might have had in supporting Defendant’s theory that

other people present in his apartment were responsible for putting
 19

the drugs and guns there, was far outweighed by the danger of unfair

prejudice that could result from inquiry into those areas. Evid.R.

403(A). Under those circumstances, the limits the trial court

placed on the scope of cross-examination of the police officers

was entirely reasonable and not an abuse of discretion.

{¶ 50} Defendant’s third assignment of error is overruled.

FOURTH ASSIGNMENT OF ERROR

{¶ 51} “THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S

MOTION FOR ACQUITTAL BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO

SUPPORT THE CHARGES AGAINST APPELLANT.”

{¶ 52} Defendant argues that the trial court erred in overruling

his Crim.R. 29 motion for acquittal based upon insufficient

evidence because the State failed to prove that he knowingly

possessed the cocaine and marijuana police found in the bedroom

of his apartment.

{¶ 53} When considering a Crim.R. 29 motion for acquittal, the

trial court must construe the evidence in a light most favorable

to the State and determine whether reasonable minds could reach

different conclusions on whether the evidence proves each element

of the offense charged beyond a reasonable doubt. State v.

Bridgeman (1978), 55 Ohio St.2d 261. The motion will be granted

only when reasonable minds could only conclude that the evidence

fails to prove all of the elements of the offense. State v. Miles
 20

(1996), 114 Ohio App.3d 738.

{¶ 54} A Crim.R. 29 motion challenges the legal sufficiency

of the evidence. A sufficiency of the evidence argument challenges

whether the State has presented adequate evidence on each element

of the offense to allow the case to go to the jury or sustain the

verdict as a matter of law. State v. Thompkins, (1997), 78 Ohio

St.3d 380. The proper test to apply to such an inquiry is the

one set forth in paragraph two of the syllabus of State v. Jenks

(1991), 61 Ohio St.3d 259:

{¶ 55} “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.”

{¶ 56} Defendant was charged in count one with violating R.C.

2925.11(A), which required the State to prove that Defendant

knowingly possessed crack cocaine, and in count two with violating

R.C. 2925.03(A)(2), which required the State to prove that

Defendant knowingly prepared for distribution marijuana, knowing
 21

or having reasonable cause to believe the marijuana was intended

for sale or resale.

{¶ 57} “Knowingly” is defined in R.C. 2901.22(B):

{¶ 58} “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.”

{¶ 59} “Possession” is defined in R.C. 2925.01(K):

{¶ 60} “‘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.”

{¶ 61} Possession of a drug may be either actual physical

possession or constructive possession. State v. Butler (1989),

42 Ohio St.3d 174. A person has constructive possession of an

item when he is conscious of the presence of the object and able

to exercise dominion and control over that item, even if it is

not within his immediate physical possession. State v. Hankerson

(1982), 70 Ohio St.2d 87; State v. Wolery (1976), 46 Ohio St.2d

316.

{¶ 62} Readily usable drugs found in very close proximity to
 22

a defendant may constitute circumstantial evidence sufficient to

support a conclusion that he constructively possessed those drugs.

State v. Miller, Montgomery App. No. 19174, 2002-Ohio-4197. In

determining whether a defendant knowingly possessed a controlled

substance, it is necessary to examine the totality of the facts

and circumstances surrounding its discovery. State v. Teamer,

82 Ohio St.3d 490, 492, 1998-Ohio-193; State v. Pounds, Montgomery

App. No. 21257, 2006-Ohio-3040.

{¶ 63} Defendant points out that his fingerprints were not found

on the baggies of cocaine or marijuana, and that there were eight

other people present inside his apartment when police arrived.

According to Defendant, the only evidence of his possession was

the mere fact that he was the lessor and lived at that apartment

where the drugs were found, and he was present at the time the

drugs were discovered by police. Defendant claims that is

insufficient to prove knowing possession. R.C. 2925.01(K).

{¶ 64} The evidence presented by the State, which includes

Defendant’s statements to Detective Reed and the electric utility

bill found on the desk in the bedroom of the apartment, demonstrates

that Defendant was the resident of this apartment and was present

when police entered and discovered the contraband in question.

A blue tub full of men’s clothing was found at the end of the bed.

Inside that tub police found a cigar box which contained a small
 23

baggie of crack cocaine, and a large baggie filled with twelve

smaller baggies, each of which contained a similar sized small

amount of marijuana. Deputy Moore and Detective Reed both

testified that the marijuana was packaged for sale. Inside that

same bedroom where the cocaine and marijuana were found, police

discovered several loaded firearms between the mattress and box

springs. In the kitchen area, police discovered baggies with pills

in them, digital scales, and marijuana in plain view.

{¶ 65} From the combination of direct and circumstantial

evidence in this case, viewed in a light most favorable to the

State, a rational trier of facts could find beyond a reasonable

doubt that Defendant constructively possessed the crack cocaine

and marijuana police found in the bedroom of his apartment.

Defendant’s convictions are supported by legally sufficient

evidence and the trial court properly overruled his Crim.R. 29

motion for acquittal.

{¶ 66} Defendant’s fourth assignment of error is overruled.

FIFTH ASSIGNMENT OF ERROR

{¶ 67} “APPELLANT’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.”

{¶ 68} A weight of the evidence argument challenges the

believability of the evidence and asks which of the competing

inferences suggested by the evidence is more believable or
 24

persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App.

No. 15563, unreported. The proper test to apply to that inquiry

is the one set forth in State v. Martin (1983), 20 Ohio App.3d

172, 175:

{¶ 69} “[t]he 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 lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and

a new trial ordered.” Accord: State v. Thompkins, supra.

{¶ 70} The credibility of the witnesses and the weight to be

given to their testimony are matters for the trier of facts to

resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State

v. Lawson (Aug. 22, 1997), Montgomery App.No. 16288, we observed:

{¶ 71} “[b]ecause the factfinder . . . has the opportunity to

see and hear the witnesses, the cautious exercise of the

discretionary power of a court of appeals to find that a judgment

is against the manifest weight of the evidence requires that

substantial deference be extended to the factfinder’s

determinations of credibility. The decision whether, and to what

extent, to credit the testimony of particular witnesses is within

the peculiar competence of the factfinder, who has seen and heard

the witness.”
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{¶ 72} This court will not substitute its judgment for that

of the trier of facts on the issue of witness credibility unless

it is patently apparent that the trier of facts lost its way in

arriving at its verdict. State v. Bradley (Oct. 24, 1997),

Champaign App. No. 97-CA-03.

{¶ 73} Defendant argues that his conviction on the firearm

specifications is against the manifest weight of the evidence

because the State failed to prove that Defendant had possession,

custody or control over those firearms. Defendant points out that

no one saw him in actual possession of any firearm, and there was

no evidence that Defendant’s fingerprints were found on any of

the firearms. According to Defendant, merely being the tenant

of the apartment where the firearms were found is not sufficient

to prove that Defendant possessed or had control over those

firearms.

{¶ 74} For essentially the same reasons we discussed in

overruling the previous assignment of error, the combination of

direct and circumstantial evidence presented by the State, when

viewed in its totality, was sufficient to prove that Defendant

constructively possessed the firearms found in the bedroom of his

apartment. Defendant admitted to police that he lived at the

apartment and had been home sleeping from 9:00 a.m. until police

arrived. The guns were found in the bed in Defendant’s bedroom,
 26

between the mattress and box springs. Defendant’s close personal

proximity and ready access to these loaded, operable firearms

establishes his constructive possession/control over them. The

jury did not lose its way in choosing to believe the State’s version

of events rather than Defendant’s, which it had a right to do.

DeHass.

{¶ 75} Reviewing the record as a whole, we cannot say that the

evidence weighs heavily against a conviction, that the jury lost

its way in choosing to believe the State’s witnesses, or that a

manifest miscarriage of justice occurred. Defendant’s conviction

on the firearm specifications is not against the manifest weight

of the evidence.

{¶ 76} Defendant’s fifth assignment of error is overruled.

The judgment of the trial court will be affirmed.

DONOVAN, J. And WAITE, J., concur.

(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Ohio.)

Copies mailed to:

Timothy J. Cole, Esq.
Andrea G. Ostrowski, Esq.
Hon. John D. Schmitt (Visiting Judge)
Hon. Mary Wiseman
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