[Cite as State v. Klingensmith, 2016-Ohio-2906.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2015 AP 11 0059
JACOB A. KLINGENSMITH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2015 CR 02 0019
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 9, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MICHAEL J. ERNEST MARK A. PERLAKY
ASSISTANT PROSECUTOR ASSISTANT PUBLIC DEFENDER
125 East High Avenue 153 North Broadway Street
New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2015 AP 11 0059 2
Wise, J.
{¶1} Appellant Jacob A. Klingensmith appeals his conviction on one count of
possession of cocaine, following a bench trial in the Tuscarawas County Common Pleas
Court.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} Appellant, Jacob A. Klingensmith, was indicted on one count of Possession
of Cocaine, a felony of the fifth degree. The charges in this case arise from an incident
which occurred at the Country Inn and Suites located in Dover, Ohio.
{¶4} At the bench trial in this matter, which commenced on June 18, 2015, the
state of Ohio called Joyce Espenschied as a witness. Ms. Espenschied stated that she
is the general manager at the Country Inn and Suites in Dover, Ohio. (T. at 13). Ms.
Espenschied stated that on July 27, 2014, she received a call from her assistant manager
about some suspicious activity at the hotel. (T. at 13-14). Ms. Espenschied stated that
she then went to the hotel to observe the parking lot to see if she could see any sort of
problem. Ms. Espenschied stated that she sat in the parking lot looking for suspicious
activity (T. at 13-14). Ms. Espenschied stated that she then went into the lobby to speak
with the women who was working at the front desk. (T. at 14). While in the lobby area,
Ms. Espenschied stated that she observed a man walk through the front entrance and
drop something on the floor. (T. at 14). Ms. Espenschied stated that she recovered the
item from the floor, and suspecting it was drugs, took it to the Dover Police Station. (T.
at 13). Ms. Espenschied also identified State's Exhibit A as a DVD containing the incident
that she observed in the lobby area of the hotel. (T. at. 15-16).
Tuscarawas County, Case No. 2015 AP 11 0059 3
{¶5} The state of Ohio also presented the testimony of Officer Shawn Leffler of
the City of Dover Police Department. Officer Leffler testified that on July 27, 2014, he
was working as a police officer and that he was at the station when Ms. Espenschied
came in. (T. at 31-32). Officer Leffler observed the substance that Ms. Espenschied
brought in and suspected that it was cocaine.1 (T. at 30). Officer Leffler stated that he
went to the Country Inn and Suites with Ms. Espenschied because she was going to ask
two of the guests to leave because she suspected that they were the source of drug
activity at the hotel, (T. at 31). The two guests were Gabriel Witham and Appellant Jacob
Klingensmith. (T. at 31).
{¶6} Officer Leffler testified that while at the hotel on July 27, 2014, he had the
opportunity to speak to Appellant. (T. at 32). Officer Leffler stated that he also had the
opportunity to review the surveillance video from the hotel. (T. at 34). According to Officer
Leffler, the person in the video from the hotel lobby looked like the person that he spoke
with at the hotel and who identified himself as Appellant.
{¶7} Appellant called no witnesses and the parties moved to closing argument.
Afterward, the trial court took the matter under advisement. (T. at 39, 51).
{¶8} Subsequently, on June 24, 2015, the trial court issued a Judgment Entry
requesting that counsel for Appellant and Appellee file written documentation as to
whether or not a bench trial could be reopened, without request of either party, and at
the Order of the Court, for the express purpose of observing a tattoo that Appellant may
have on his inner lower-right leg. (T. (II). at 2). Both parties filed memoranda, and after
1The substance was sent to B.C.I & I. where it was determined to be cocaine.
The identity of this substance was not disputed in this matter.
Tuscarawas County, Case No. 2015 AP 11 0059 4
reviewing the same, the trial court concluded that it had authority to re-open the case to
view any and all tattoos on Appellant's inner right leg. (T. (II). at 2-3).
{¶9} The trial court then viewed a tattoo on Appellant's inner right leg, and
Counsel for Appellant objected to same in open Court on September 8, 2015. (T. (II). at
6-7).
{¶10} On September 8, 2015, the trial court reopened this matter for a
continuation of the bench trial for the purpose of having the Appellant present in order to
allow the trial court to observe the Appellant's inner right leg to determine if a tattoo
existed.
{¶11} On September 9, 2015, the trial court issued a Verdict Judgment Entry
finding Appellant guilty of possession of cocaine, R.C. §2925.11, a felony of the fifth
degree.
{¶12} On October 29, 2015, the trial court issued a Judgment Entry imposing
sentence on Appellant. Appellant was sentenced to one year of unsupervised community
control sanctions, seventy-five (75) hours of community service, payment of the court
costs, and a six-month suspension of his motor vehicle operator's license. Appellant’s
sentence was stayed pending appeal.
{¶13} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶14} “I. THE TRIAL COURT ERRED IN RE-OPENING THE EVIDENCE IN THIS
CASE WHEN NEITHER PARTY HAD SPECIFICALLY REQUESTED IT.
Tuscarawas County, Case No. 2015 AP 11 0059 5
{¶15} “II. THE TRIAL COURT’S VERDICT OF GUILTY WAS BASED ON
INSUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶16} For ease of discussion, we shall address Appellant’s Assignments of Error
out of order.
II.
{¶17} In his Second Assignment of Error, Appellant argues that his conviction was
against the manifest weight and sufficiency of the evidence. We disagree.
{¶18} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury ‘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, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1983). Reversing a conviction as being against the manifest weight of the evidence
and ordering a new trial should be reserved for only the “exceptional case in which the
evidence weighs heavily against the conviction.” Id. The weighing of the evidence and
judging of the credibility of the witnesses is best left to the trier of fact.
{¶19} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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
Tuscarawas County, Case No. 2015 AP 11 0059 6
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶20} Appellant herein was charged and convicted of one count of possession of
cocaine, in violation of R.C. §2925.11(A), a felony of the fifth degree, as follows:
{¶21} “No person shall knowingly obtain, possess, or use a controlled substance
or a controlled substance analog and the drug involved was cocaine or a compound,
mixture, preparation, or substance containing cocaine in an amount of less than five
grams.”
{¶22} Appellant specifically argues that he was not knowingly in possession of the
drugs found on the floor in the hotel lobby.
{¶23} “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). “With regard to the ability to prove an offender's
intentions, the Ohio Supreme Court has recognized that ‘intent, lying as it does within
the privacy of a person's own thoughts, is not susceptible [to] objective proof.’ ” State v.
Wilson, 12th Dist. Warren No. CA2006–01–007, 2007–Ohio–2298, ¶ 41, quoting State
v. Garner, 74 Ohio St.3d 49, 60, 656 N.E.2d 623 (1995). Thus, “whether a person acts
knowingly can only be determined, absent a defendant's admission, from all the
surrounding facts and circumstances * * *.” State v. Huff, 145 Ohio App.3d 555, 563, 763
N.E.2d 695 (1st Dist.2001).
{¶24} R.C. §2925.01(K) defines possession as follows: “‘Possess’ or ‘possession’
means having control over a thing or substance, but may not be inferred solely from
Tuscarawas County, Case No. 2015 AP 11 0059 7
mere access to the thing or substance through ownership or occupation of the premises
upon which the thing or substance is found.”
{¶25} R.C. §2901.21 provides the requirements for criminal liability and provides
that possession is a “voluntary act if the possessor knowingly procured or received the
thing possessed, or was aware of the possessor's control of the thing possessed for
sufficient time to have ended possession.” R.C. 2901.21(D)(1).
{¶26} Possession may be actual or constructive. State v. Butler, 42 Ohio St.3d
174, 176, 538 N.E.2d 98 (1989); State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d 787
(1971); State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus. To
establish constructive possession, the evidence must prove that the defendant was able
to exercise dominion and control over the contraband. State v. Wolery, 46 Ohio St.2d
316, 332, 348 N.E.2d 351 (1976). Dominion and control may be proven by circumstantial
evidence alone. State v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93 (8th Dist.2000).
Circumstantial evidence that the defendant was located in very close proximity to the
contraband may show constructive possession. State v. Butler, supra; State v. Barr, 86
Ohio App.3d 227, 235, 620 N.E.2d 242, 247–248 (8th Dist.1993); State v. Morales, 5th
Dist. Licking No. 2004 CA 68, 2005–Ohio–4714, ¶ 50; State v. Moses, 5th Dist. Stark
No. 2003CA00384, 2004–Ohio–4943, ¶9. Ownership of the contraband need not be
established in order to find constructive possession. State v. Smith, 9th Dist. Summit No.
20885, 2002–Ohio–3034, ¶13, citing State v. Mann, 93 Ohio App.3d 301, 308, 638
N.E.2d 585 (8th Dist.1993). Furthermore, possession may be individual or joint. Wolery,
46 Ohio St.2d at 332, 348 N.E.2d 351. Multiple individuals may constructively possess a
particular item of contraband simultaneously. State v. Pitts, 4th Dist. Scioto No. 99 CA
Tuscarawas County, Case No. 2015 AP 11 0059 8
2675, 2000–Ohio–1986. The Supreme Court has held that knowledge of illegal goods
on one's property is sufficient to show constructive possession. State v. Hankerson, 70
Ohio St.2d 87, 91, 434 N.E.2d 1362, 1365 (1982), certiorari denied, 459 U.S. 870, 103
S.Ct. 155, 74 L.Ed.2d 130 (1982).
{¶27} As set forth above, testimony was presented at trial that the substance
found on the floor in the lobby of the Country Inn and Suites was cocaine. Further, the
State produced evidence that prior to Appellant entering the hotel lobby, the cocaine was
not there. Ms. Espenschied testified that she was in the lobby when she observed a man
walk through the front entrance and drop something on the floor. (T. at 14). She stated
that she recovered the item from the floor and upon inspection, suspected that it was
drugs. She then took the suspected drugs to the Dover Police station. (T. at 15). Officer
Leffler testified that he accompanied Ms. Espenschied back to the hotel and spoke with
two of the guests who were suspected to be the source of the drug activity, and that
Appellant was one of those guests. He further testified that he reviewed the surveillance
video, and the person in the video looked like the same person he spoke to at the hotel
on July 27, 2014. (T. at 32, 34).
{¶28} Based on the foregoing, we find that there was sufficient evidence that
Appellant knowingly possessed the drugs found in the hotel lobby. We further find that
the trial court did not lose its way in convicting Appellant of the crime of possession of
drugs.
{¶29} Appellant’s second assignment of error is overruled.
Tuscarawas County, Case No. 2015 AP 11 0059 9
I.
{¶30} In his First Assignment of Error, Appellant contends the trial court erred in
reopening the evidence in this case sua sponte for purposes of viewing Appellant’s leg.
We agree.
{¶31} A trial court may, within its sound discretion, reopen a case to permit a party
to put on additional evidence after both parties have rested. Ketcham v. Miller (1922),
104 Ohio St. 372.
{¶32} In the case sub judice, neither party requested that the case be re-opened
for the presentation of additional evidence. Instead, almost one week after the trial in this
matter concluded, the trial court, issued a Judgment Entry to the parties requesting the
parties brief the issue of whether the trial court could re-open this matter on its own
motion. Having decided that it could re-open the case on its own motion, the trial court,
approximately two and a half months later, re-opened the case for the purpose of viewing
any tattoos that may or may not have been on Appellant’s right leg. Counsel for Appellant
objected to these actions by the trial court. (T. (II) at 6-7).
{¶33} Under these circumstances, we find that it was error for the trial court to
usurp the role of the prosecutor by re-opening the State’s case to cause Appellant to
show his leg and the tattoo thereon. We find that by so doing, the trial court interjected
itself into the prosecution’s case by gathering evidence on behalf of the State. The trial
court therein lost its impartiality, and became a de facto prosecutor or State actor.
{¶34} We find the trial court’s actions in re-opening this case to gather evidence
to be an error of law. Appellant’s First Assignment of Error is therefore sustained.
Tuscarawas County, Case No. 2015 AP 11 0059 10
{¶35} However, while determining that the evidence of the existence of the tattoo
on Appellant’s leg was erroneously considered by the trial judge, as set forth above, we
find that the remaining evidence was sufficient to support a conviction in this case. We
therefore find the error to be harmless in this case.
{¶36} For the foregoing reasons, the judgment of the Court of Common Pleas,
Tuscarawas County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/d 0420