[Cite as State v. King, 2011-Ohio-3323.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 10-CA-102
BRIAN KING :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas Case No. 09-CR-592
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 30, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
EARL L. FROST 0069328 DAVID A. BARTH 0039966
Licking County Prosecutor’s Office 33 South Park Place, Ste. 201
20 S. Second St., 4th Fl. Newark, Ohio 43055
Newark, Ohio 43055
[Cite as State v. King, 2011-Ohio-3323.]
Delaney, J.
{¶1} Defendant-Appellant, Brian King, appeals the judgment of the Licking
County Court of Common Pleas, convicting him of one count of trafficking in crack
cocaine, one count of possession of crack cocaine, one count of possession of drug
paraphernalia, and one forfeiture specification. The State of Ohio is Plaintiff-Appellee.
{¶2} On November 13, 2009, Appellant traveled from Licking County, Ohio, to
Columbus, Ohio, to purchase crack cocaine. He traveled with Stacey Ellis, whose
home he was living in, and Brittani Hill, another resident of Ms. Ellis’ residence.
Appellant was selling drugs out of Ms. Ellis’ home at that time.
{¶3} Appellant instructed Ms. Ellis, who was driving him to Columbus, where to
go to make the purchase. Appellant exited the car at the location and got into another
car with an unknown man. When Appellant got back into the car with Ms. Ellis and Ms.
Hill, he placed a large rock of crack cocaine on the center console. According to Ms.
Ellis, Appellant had brought approximately six-hundred dollars to purchase the crack.
{¶4} A confidential informant purchased crack cocaine from Appellant on
November 13, 2009. Afterwards, a search warrant was executed at the home of Stacey
Ellis. Appellant was found inside the home in the entryway to the laundry room. Two
bags of crack cocaine were found inside the laundry room.
{¶5} Appellant was arrested and subsequently interviewed. He admitted that
he had gone to Columbus and purchased over ten grams of crack cocaine and then
returned to the home of Stacey Ellis.
{¶6} Appellant was indicted on November 20, 2009, on one count of trafficking
in crack cocaine, in violation of R.C. 2925.03(A)(1)(C)(4)(c), a felony of the third degree,
Licking County, Case No. 10-CA-102 3
one count of possession of crack cocaine, in violation of R.C. 2925.11(A)(C)(4)(d), a
felony of the second degree, one count of possession of drug paraphernalia, in violation
of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree, and a forfeiture
specification, in violation of R.C. 2981.02(A)(3)(a) and 2941.1417. The trafficking count
was later amended to reflect a felony of the fourth degree.
{¶7} On July 19, 2010, Appellant exercised his right to a bench trial and was
found guilty of all counts. He was sentenced to four years in prison and the forfeiture
specification was granted.
{¶8} Appellant appeals from the judgment of the trial court and raises two
Assignments of Error:
{¶9} “I. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND
FEDERAL RIGHTS TO DUE PROCESS AND O.R.C. 2925.21(E) BY FAILING TO
ALLOW THE APPELLANT TO HAVE THE DRUGS REANALYZED AND RE-WEIGHED
BY AN INDEPENDENT LABORATORY ANALYST AS AUTHORIZED BY O.R.C.
2925.51(E).
{¶10} “II. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND
FEDERAL RIGHTS TO DUE PROCESS AS WELL AS BEING DENIED A FAIR AND
IMPARTIAL TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10,
ARTICLE 1 OF THE OHIO CONSTITUTION BY USING EVIDENCE INSUFFICIENT AS
A MATTER OF LAW TO SUPPORT THE CONVICTION, IN ESSENCE THE
PROSECUTION DID NOT PROVE THE NECESSARY ELEMENTS TO SHOW
Licking County, Case No. 10-CA-102 4
CONSTRUCTIVE POSSESSION. THE GUILTY VERDICT IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶11} In his first assignment of error, Appellant argues that the trial court violated
his due process rights by failing to allow him to have an independent analyst retest and
reweigh the crack cocaine confiscated during a search warrant at the residence.
{¶12} Appellant failed to properly preserve this issue for appeal at the trial court
level, and accordingly, we review his claim under a plain error standard of review.
Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” The rule places
several limitations on a reviewing court's determination to correct an error despite the
absence of a timely objection at trial: (1) “there must be an error, i.e., a deviation from a
legal rule,” (2) “the error must be plain,” that is, an error that constitutes “an ‘obvious'
defect in the trial proceedings,” and (3) the error must have affected “substantial rights”
such that “ the trial court's error must have affected the outcome of the trial.” State v.
Morales, 10th Dist. Nos. 03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19, quoting State
v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240; State v. Gross, 97 Ohio St.3d
121, 776 N.E.2d 1061, 2002-Ohio-5524, ¶ 45. The decision to correct a plain error is
discretionary and should be made “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” Barnes, supra,
quoting State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the
syllabus.
Licking County, Case No. 10-CA-102 5
{¶13} R.C. 2925.51 provides as follows:
{¶14} “(E) Any person who is accused of a violation of this chapter or of Chapter
3719. of the Revised Code is entitled, upon written request made to the prosecuting
attorney, to have a portion of the substance that is, or of each of the substances that
are, the basis of the alleged violation preserved for the benefit of independent analysis
performed by a laboratory analyst employed by the accused person, or, if the accused
is indigent, by a qualified laboratory analyst appointed by the court. Such portion shall
be a representative sample of the entire substance that is, or of each of the substances
that are, the basis of the alleged violation and shall be of sufficient size, in the opinion of
the court, to permit the accused's analyst to make a thorough scientific analysis
concerning the identity of the substance or substances. The prosecuting attorney shall
provide the accused's analyst with the sample portion at least fourteen days prior to
trial, unless the trial is to be held in a court not of record or unless the accused person is
charged with a minor misdemeanor, in which case the prosecuting attorney shall
provide the accused's analyst with the sample portion at least three days prior to trial. If
the prosecuting attorney determines that such a sample portion cannot be preserved
and given to the accused's analyst, the prosecuting attorney shall so inform the accused
person or his attorney. In such a circumstance, the accused person is entitled, upon
written request made to the prosecuting attorney, to have the accused's privately
employed or court appointed analyst present at an analysis of the substance that is, or
the substances that are, the basis of the alleged violation, and, upon further written
request, to receive copies of all recorded scientific data that result from the analysis and
Licking County, Case No. 10-CA-102 6
that can be used by an analyst in arriving at conclusions, findings, or opinions
concerning the identity of the substance or substances subject to the analysis.
{¶15} “(F) In addition to the rights provided under division (E) of this section, any
person who is accused of a violation of this chapter or of Chapter 3719. of the Revised
Code that involves a bulk amount of a controlled substance, or any multiple thereof, or
who is accused of a violation of section 2925.11 of the Revised Code, other than a
minor misdemeanor violation, that involves marihuana, is entitled, upon written request
made to the prosecuting attorney, to have a laboratory analyst of the accused's choice,
or, if the accused is indigent, a qualified laboratory analyst appointed by the court
present at a measurement or weighing of the substance that is the basis of the alleged
violation. Also, the accused person is entitled, upon further written request, to receive
copies of all recorded scientific data that result from the measurement or weighing and
that can be used by an analyst in arriving at conclusions, findings, or opinions
concerning the weight, volume, or number of unit doses of the substance subject to the
measurement or weighing.”
{¶16} Appellant filed a “Motion To Reweigh Evidence” and requested that the
court issue an order to have the evidence reweighed because the amount determined
by the lab “is crucially close to the needed amounts for the felony levels charged.”
{¶17} The trial court granted the motion and ordered that the evidence be
reweighed by a different technician. On May 21, 2010, the evidence was reweighed
and Appellant’s attorney was present at the reweighing. All samples were examined
and the changes in weight were found to be within acceptable limits based upon loss
due to testing. No objection was made to this retesting or reweighing at trial.
Licking County, Case No. 10-CA-102 7
{¶18} As noted above, R.C. 2925.51 allows a defendant to petition the
prosecutor’s office to have a portion of the substance retested by an independent
analyst, or if the accused is indigent, by a court appointed qualified laboratory analyst.
Appellant’s “Motion to Reweigh Evidence” does not request an independent analysis of
the drugs, but only to have the drugs reweighed by a “different” technician.
{¶19} Where a defendant fails to properly invoke the protections of R.C.
2925.51(E), he has waived those protections. State v. Imani, 5th Dist. No. 2008 AP 06
0043, 2009-Ohio-5717, ¶¶ 25-29. Appellant failed to request an independent analysis,
and therefore we find no due process violation on the basis that the prosecutor failed to
provide him with a sample of the drugs for retesting.
{¶20} Regarding Appellant’s argument that the trial court erred in failing to allow
Appellant to have an independent analyst reweigh the drugs pursuant to R.C.
2925.51(F), we find no violation of Appellant’s rights. The State had the drugs
reweighed by a different analyst, Appellant’s trial counsel was present, and Appellant
failed to have an independent analyst present at the reweighing. Moreover, as
Appellant was indigent pursuant to court records, he failed to petition the court to
appoint an independent analyst to be present on his behalf. Accordingly, Appellant
failed to properly invoke this provision as well.
{¶21} Finally, we would note that Appellant has failed to demonstrate that “but
for” the reweighing of the drugs by an independent analyst, the outcome of the trial
would be different. Accordingly, he has presented no evidence of prejudice.
{¶22} Appellant’s first assignment of error is overruled.
Licking County, Case No. 10-CA-102 8
II.
{¶23} In his second assignment of error, Appellant argues that his conviction for
possession of crack cocaine is against the manifest weight of the evidence. We
disagree.
{¶24} When considering whether a judgment is against the manifest weight of
the evidence in a bench trial, an appellate court will not reverse a conviction where the
trial court could reasonably conclude from substantial evidence that the state has
proven the offense beyond a reasonable doubt. State v. Murray, 12thDist. No. CA2009–
03–015, 2009–Ohio–6174, ¶ 18, quoting State v. Eckert, 12th Dist. No. CA2008–10–
099, 2009–Ohio–3312, ¶ 16; State v. Eskridge (1988), 38 Ohio St.3d 56, 59, 526 N.E.2d
304. In conducting its review, an appellate court examines 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 trial court “clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–
Ohio–52, 678 N.E.2d 541. However, while appellate review includes the responsibility to
consider the credibility of witnesses and weight to be given the evidence, these issues
are primarily matters for the trier of fact to decide. State v. DeHass (1967), 10 Ohio
St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. In a bench trial, the trial court
acts as the fact-finder. State v. Kersey, 12th Dist. No. CA2008–02–031, 2008–Ohio–
6890, ¶ 10.
{¶25} In reviewing the evidence, we must determine whether the State
presented evidence of Appellant’s possession of crack cocaine charge. Appellant
Licking County, Case No. 10-CA-102 9
asserts that the State failed to provide sufficient evidence of constructive possession of
crack cocaine.
{¶26} “[I]n a bench trial, a trial court is presumed to have considered only the
relevant, material and competent evidence.” State v. Addison, 10th Dist. No. 03AP-
1102, 2004-Ohio-5154, at ¶ 10, citing State v. Bays (1999), 87 Ohio St.3d 15, 28, 716
N.E.2d 1126. Thus, we must presume that, even if testimony was erroneously admitted
into evidence, the trial court did not consider it in rendering its verdict.
{¶27} The State may show constructive possession of drugs by circumstantial
evidence alone. State v. Trembly (2000), 137 Ohio App.3d 134, 141, 738 N.E.2d 93.
Absent a defendant's admission, the surrounding facts and circumstances, including the
defendant's actions, are evidence that the trier of fact can consider in determining
whether the defendant had constructive possession over the subject drugs. State v.
Norman, 10th Dist. No. 03AP–298, 2003–Ohio–7038, ¶ 31; State v. Baker, 10th Dist.
No. 02AP–627, 2003–Ohio–633, ¶ 23. Inherent in a finding of constructive possession
is the determination that the defendant had knowledge of the drugs. State v. Alexander,
8th Dist. No. 90509, 2009–Ohio–597, ¶ 24.
{¶28} 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 acted knowingly generally must be
determined from all the surrounding facts and circumstances. See State v. Huff (2001),
145 Ohio App.3d 555, 763 N.E.2d 695.
Licking County, Case No. 10-CA-102 10
{¶29} In the case at bar, ample evidence was presented to establish that
Appellant was knowingly in constructive possession of the crack cocaine found in the
home.
{¶30} Appellant was found in the doorway to the laundry room, where the crack
cocaine was located during the search of Ms. Ellis’ home. Ms. Ellis testified that
Appellant lived in the home and sold drugs out of her home. Appellant admitted that he
had gone to Columbus that day and had purchased 10 grams of crack cocaine. He
then sold crack cocaine to a confidential informant on November 13, 2009, prior to the
execution of the search warrant.
{¶31} Though Appellant did not have the crack cocaine in his hands, there is
sufficient evidence presented to support the trial court’s finding of guilt for the
possession of crack cocaine charge.
{¶32} Appellant’s second assignment of error is overruled.
{¶33} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.
Wise, P.J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS
[Cite as State v. King, 2011-Ohio-3323.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
BRIAN KING :
:
Defendant-Appellant : Case No. 10-CA-102
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to
Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON JOHN W. WISE
_________________________________
HON. JULIE A. EDWARDS
State v. King
Combined Opinion