State v. Trammell

[Cite as State v. Trammell, 2017-Ohio-8198.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :
CASE NOS. CA2016-11-220
Plaintiff-Appellee, : CA2016-11-221
CA2016-11-222
:
- vs - OPINION
: 10/16/2017

GREGORY LEN TRAMMELL II, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2013-12-1919

Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Neal D. Schuett, 121 West High Street, Oxford, Ohio 45056, for defendant-appellant

M. POWELL, J.

{¶ 1} Defendant-appellant, Gregory Len Trammell II, appeals his convictions in the

Butler County Court of Common Pleas for possession of heroin, trafficking in heroin,

possession of drug paraphernalia, and having weapons under disability.

{¶ 2} In March 2014, appellant pled guilty to trafficking in cocaine and possession of

cocaine in Case No. CR2013-09-1415, and to possession of cocaine, attempted trafficking in

heroin, and attempted tampering with evidence in Case No. CR2013-12-1919. Appellant was
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

sentenced to five years of community control and placed on probation in both cases. In June

2015, the probation department filed a report and notice of a community control violation in

both cases. The events that formed the basis of appellant's community control violation and

resulted in his convictions in the case at bar took place on June 15, 2015, in and near a

house on Millikin Street in Hamilton, Ohio.

{¶ 3} On June 15, 2015, appellant's parole officer, Kendra Katherman, received a tip

that appellant was trafficking in heroin and had guns and heroin at his known residence on

Millikin Street where he lived with his girlfriend Krystal Jackson ("Jackson") and her children.

The tipster was a woman who knew appellant and who had been inside the Milliken Street

residence the day before. Acting on this information, Officer Katherman called appellant into

her office for a random drug screen. Appellant tested negative for illicit substances.

Subsequently, Officer Katherman accompanied by Hamilton Police Officer Brian

Ungerbuehler drove to appellant's home to conduct a search, as authorized by the conditions

of appellant's parole. Appellant was transported to the home, handcuffed in the back of

Officer Ungerbuehler's cruiser. Appellant remained in the cruiser during the parole search.

{¶ 4} At the house, Officers Katherman and Ungerbuehler were met at the door by

Jackson. Upon entering the home, the officers asked Jackson whether there was anything of

concern in the home. Jackson replied there was marijuana. The officers then inquired about

a safe. Jackson replied it was in the master bedroom. She then took the officers to the

bedroom, removed a safe from underneath a dresser, and opened the safe with a digital

code. Inside the safe were two handguns, a Jennings handgun and a Derringer handgun,

four clear plastic baggies of heroin for a total weight of 45.6 grams (or about two ounces),

and $1,677 in cash. The officers further observed a loaded SKS assault rifle inside a closet

in the master bedroom. A search warrant for the residence was then obtained.

-2-
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

{¶ 5} Upon executing the search warrant, Hamilton Detective Greg Baker and Officer

Ungerbuehler found two additional handguns, a Jimenez handgun and a Ruger handgun,

ammunition, two digital scales, and additional cash in the master bedroom. The officers

further found drug paraphernalia in the basement of the home, including a C-clamp, Inositol

powder, and a blender. Of the five weapons found in the home, only the Ruger handgun was

inoperable.1 The street value of the heroin found in the safe was about $4,500.

{¶ 6} Inside the house, the officers found men's clothing in the master bedroom and

children's clothing and toys in the second bedroom. The men's clothing, which appeared to

be in appellant's size, was located in the closet, on the floor, and on the side of the bed, and

included baseball hats, bottoms, shirts, and "a lot of shoes." The officers further found mail

addressed to appellant in the master bedroom and the kitchen. One was a utility bill, the

other from the Butler County Board of Elections. The officers found no evidence connecting

any other adults to the house besides appellant and Jackson.

{¶ 7} Appellant was indicted in August 2015 on one count of possession of heroin,

one count of trafficking in heroin, and four counts of having weapons under disability, all

felonies, and one count of misdemeanor possession of drug paraphernalia. The matter

proceeded to a jury trial on September 7, 2016. At trial, Officers Katherman and

Ungerbuehler, Detective Baker, and Lieutenant Wade McQueen testified on behalf of the

state; appellant testified on his own behalf.

{¶ 8} Officer Ungerbuehler testified appellant admitted that all of the items found in

the house were his, including the weapons, and never indicated that the heroin, weapons,

and cash belonged to someone else. Detective Baker testified that the four baggies of heroin

found in the safe were packaged and prepared for sale, and that the drug paraphernalia

1. Because the Ruger was not operable, appellant was not indicted for having it in the house.
-3-
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

found in the house was used in drug trafficking.

{¶ 9} As stated above, appellant remained in the cruiser during both searches. The

cruiser was equipped with an audio-video recording device. During the search of the home,

appellant was recorded talking to himself, specifically mentioning "five guns, two ounces of

dope" and "the SK," and lamenting as to why he had not removed the contraband from the

house: "All you would have had done was take the SK, go get that, get them out of the safe,

and take them somewhere. You gonna ruin the rest of your life for that mistake. * * * We're

talking about five guns, two ounces of dope, I'm pretty scared."

{¶ 10} Appellant was further recorded talking to Jackson and police officers. During

the parole search, appellant repeatedly admitted to the police that everything in the house

was his. By contrast, after Lieutenant McQueen advised appellant of his Miranda rights,

appellant denied there were any drugs in the house, denied the cash was his, and stated

there were only two guns in the house, including a Ruger handgun in the basement. On the

other hand, appellant admitted that the scale and the men's clothing were his. Appellant

further stated, "Everything in the house is mine. I just don't know where everything is. I

wasn't living there, she was with another man." While talking to Jackson, appellant can be

heard stating, "You don't have to give them access to the safe. You did? Ah, that's a

problem." The recording was played to the jury during Lieutenant McQueen's testimony.

{¶ 11} At trial, appellant claimed that he, Jackson, and her two children had moved

into the home only a month before the June 15, 2015 search. Appellant further claimed that

other people had lived in the home, including Jackson's sister and "for a brief period of time,

Timothy Ambach," a drug dealer. Appellant testified that following a falling out with Jackson,

he moved out of the house on June 12, 2015. Soon after, Ambach started living in the

house. Appellant eventually reconciled with Jackson and moved back in the house in the

-4-
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

early morning of June 14, 2015. Appellant testified that when he was called to submit to a

random drug screen on June 15, 2015, he had spent the previous night in the Milliken Street

residence. Appellant stated that while he used to have a key to the house before he moved

out on June 12, 2015, he did not have one on June 15, 2015, as he had just moved back into

the house.

{¶ 12} Appellant admitted he bought the Ruger handgun ostensibly to protect himself

from Ambach, but had it disabled as he could not possess a weapon as a convicted felon.

Appellant denied trafficking in heroin and denied that the other four weapons, the heroin, and

the men's clothing were his. Rather, appellant claimed that the Jimenez handgun belonged

to Jackson, and that the other three weapons, the heroin, the cash, and the men's clothing all

belonged to Ambach and had been left by Ambach when the latter moved out of the house.2

Appellant testified he called Ambach to come retrieve the weapons, drugs, and money, but

that Ambach "did not show up." Appellant admitted he knew that the Jimenez, Jennings, and

Derringer handguns, the SKS rifle, and the heroin were in the house after he moved back on

June 14, 2015.

{¶ 13} On September 8, 2016, the jury found appellant guilty as charged. The trial

court merged all four counts of having weapons under disability into a single count of having

weapons under disability, and merged the heroin possession count into the heroin trafficking

count. On October 31, 2016, appellant was sentenced to an aggregate 11-year prison term

in the case at bar. He was further sentenced for violating the terms of his community control

in the two prior, unrelated cases, to wit: appellant was sentenced to an aggregate 24-month

2. The record shows that a receipt bearing Jackson's name was found with the Jimenez handgun. Jackson told
the police that the handgun was hers. Officer Ungerbuehler testified that in his experience, it is common for
people who are prohibited from purchasing firearms to have others make a straw purchase for them.

-5-
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

prison term in Case No. CR2013-09-1415, and an aggregate 30-month prison term in Case

No. CR2013-12-1919. The trial court ordered that appellant's prison sentence for attempted

tampering with evidence in Case No. CR2013-12-1919 be served consecutively to appellant's

aggregate prison sentence in Case No. CR2013-09-1415, and that appellant's prison

sentence for heroin trafficking in the case at bar be served consecutively to appellant's

aggregate prison terms in both Cases Nos. CR2013-12-1919 and CR2013-09-1415.

{¶ 14} Appellant now appeals, raising four assignments of error. The third and fourth

assignments of error will be addressed together.

{¶ 15} Assignment of Error No. 1:

{¶ 16} THE APPELLANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN

THE TRIAL COURT ABUSED ITS DISCRETION AND ADMITTED INADMISSIBLE

HEARSAY EVIDENCE TO PROVE THAT MR. TRAMMELL WAS IN THE RESIDENCE

PRIOR TO THE HOME SEARCH.

{¶ 17} During Officer Katherman's direct examination, the state elicited a single

reference regarding the substance of the tip she had received and which led her to conduct a

parole search of appellant's home. Specifically, Officer Katherman testified that what she

found in appellant's home was exactly what was described in the tip. Then, in response to

defense counsel's questions on cross-examination, Officer Katherman testified that the

tipster was a woman known to the officer, the tipster had requested that her identity not be

disclosed, and she placed credence in the tip due to her familiarity with the tipster. Defense

counsel further established that Officer Katherman expected to find weapons and heroin in

the home based upon the tip.

{¶ 18} The apparent purpose of the foregoing cross-examination was to suggest that

Jackson, who lived in the house and was presumably aware of the presence of the weapons

-6-
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

and heroin, was the woman who tipped Officer Katherman in order to frame appellant for

possession of the contraband to facilitate Jackson's relationship with Ambach, without

interference from appellant. Consequently, on redirect examination, the state asked Officer

Katherman whether the tipster had seen appellant in the home the day before the search.

The officer replied, "yes, she did." Appellant objected on hearsay grounds and moved to

strike the officer's answer. The trial court overruled the objection.

{¶ 19} In his first assignment of error, appellant solely takes issue with Officer

Katherman's testimony on redirect examination that the tipster saw appellant in the house the

day before the search. Appellant asserts that the officer's testimony is inadmissible hearsay

because it was offered to prove the truth of the matter asserted, that is, that appellant was in

the house the day before the search uncovered weapons, heroin, and drug paraphernalia,

"and, thus, that his defense that the weapons and heroin were not his was not credible." The

state does not dispute that the statement was hearsay but asserts it was allowed under the

rule of curative admissibility, also known as the "opening the door" doctrine.3

{¶ 20} "Hearsay" is a statement, other than one made by the declarant while testifying

at trial or a hearing, offered in evidence to prove the truth of the matter asserted. Evid.R.

801(C). Officer Katherman's testimony on redirect examination that the tipster saw appellant

inside the home on June 14, 2015, was inadmissible hearsay as it was offered to prove that

appellant was inside the home the day before the search. Consequently, admission of this

hearsay testimony was error.

{¶ 21} We decline to determine whether this hearsay testimony was allowed under the

3. Under the "opening the door" doctrine, the introduction of inadmissible evidence by one party allows an
opponent, in the trial court's discretion, to introduce evidence on the same issue to rebut any false impression
that might have resulted from the earlier admission. See State v. Dunivant, 5th Dist. Stark No. 2003CA00175,
2005-Ohio-1497.

-7-
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

rule of curative admissibility. Rather, we find that admission of the hearsay testimony was

harmless error. Evid.R. 103(A) provides that "[e]rror may not be predicated upon a ruling

which admits * * * evidence unless a substantial right of the party is affected[.]" Given the

ample evidence at trial that appellant was an occupant of the home, including his testimony

that he moved back in the house and had slept there the night before the search, his

admission to the police that the men's clothing was his, the presence of mail addressed to

him in the house, and his recorded statements during the search while he waited in the police

cruiser, we find there is no reasonable possibility Officer Katherman's hearsay testimony

might have contributed to appellant's conviction, and thus, no "substantial right" of appellant

was affected by the admission of the hearsay testimony. See State v. McKelton, 148 Ohio

St.3d 261, 2016-Ohio-5735.

{¶ 22} Appellant's first assignment of error is overruled.

{¶ 23} Assignment of Error No. 2:

{¶ 24} THE APPELLANT'S RIGHT TO A SPEEDY AND FAIR TRIAL WAS

PREJUDICED WHEN THE TRIAL COURT DENIED HIS MOTION TO DISMISS.

{¶ 25} Appellant argues the trial court erred in overruling his motion to dismiss the

charges against him on speedy trial grounds. Appellant asserts he was not brought to trial

within 270 days as required under R.C. 2945.71(C)(2). The record shows that appellant was

arrested on June 15, 2015, and not brought to trial until September 7, 2016. In January

2016, appellant moved to dismiss the charges against him on speedy trial grounds pursuant

to R.C. 2941.401. Following a hearing on the motion, the trial court denied the motion.4

4. R.C. 2941.401 was not applicable here because it relates to prisoners serving "a term of imprisonment in a
correctional institution of this state." Appellant was incarcerated in the county jail awaiting trial and resolution of
his pending indictment and community control violations. Thus, appellant was not "serving a term of
imprisonment" nor was he "incarcerated in a "correctional institution."

-8-
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

{¶ 26} R.C. 2945.71(C)(2) provides that a person charged with a felony must be

brought to trial within 270 days after his or her arrest. For purposes of calculating speedy-

trial time, each day during which the defendant is held in jail in lieu of bail on the pending

charge must be counted as three days. R.C. 2945.71(E). However, the triple count provision

of R.C. 2945.71(E) applies only when the defendant is held in jail in lieu of bail solely on the

pending charges. State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, ¶ 7. The triple

count provision does not apply when the defendant is being held on a parole or probation-

violation holder. Id. The record shows that during the period of time appellant was

incarcerated on the pending charges, he was also being held for violating his probation in the

two unrelated cases.

{¶ 27} The prosecution and the trial courts have a mandatory duty to try a defendant

within the time frame provided by R.C. 2945.71. State v. Watkins, 12th Dist. Warren No.

CA2013-02-017, 2014-Ohio-177, ¶ 12. A defendant not brought to trial within the relevant

time constraints "shall be discharged," and "such discharge is a bar to any further criminal

proceedings against him based on the same conduct." R.C. 2945.73(B) and (D).

{¶ 28} Following the denial of his motion to dismiss filed pursuant to R.C. 2941.401,

appellant did not raise again the issue of a speedy trial violation to the trial court. Speedy

trial provisions are not self-executing but must be asserted by a criminal defendant in a timely

manner in order to avoid waiving such rights. Parma v. Bambeck, 8th Dist. Cuyahoga No.

96533, 2012-Ohio-171, ¶ 28; Partsch v. Haskins, 175 Ohio St. 139 (1963). "[F]ailure to file a

motion to dismiss on speedy trial grounds prior to trial and pursuant to R.C. 2945.73(B)

prevents [an appellant] from raising the issue on appeal." State v. Taylor, 98 Ohio St.3d 27,

2002-Ohio-7017, ¶ 37. Accordingly, appellant's failure to file a proper motion to dismiss prior

to trial pursuant to R.C. 2945.73(B) prevents him from raising the issue on appeal. See State

-9-
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

v. DeCola, 11th Dist. Ashtabula No. 2016-A-0037, 2017-Ohio-4232.

{¶ 29} Furthermore, appellant's brief merely asserts that "[e]ven with time tolled for

defendant's motions, the State failed to bring Mr. Trammell to trial within 270 days.

Therefore, Mr. Trammell's right to a speedy trial was violated[.]" An appellant has the burden

of demonstrating error on appeal through an argument that is supported by citations to legal

authority and facts in the record. See App.R. 16(A)(7). An appellate court may disregard an

assignment of error if it fails to identify the relevant portions of the record from which the

errors are based. See App.R. 12(A)(2). Appellant's brief neither argues when appellant was

required to be tried nor establishes that he was tried outside of the time requirements. It is

not this court's duty to "root out" or develop an argument that can support an assigned error,

even if one exists. Lebanon v. Ballinger, 12th Dist. Warren No. CA2014-08-107, 2015-Ohio-

3522, ¶ 27.

{¶ 30} Appellant's second assignment of error is accordingly overruled.

{¶ 31} Assignment of Error No. 3:

{¶ 32} THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT

APPELLANT.

{¶ 33} Assignment of Error No. 4:

{¶ 34} APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.

{¶ 35} In his third assignment of error, appellant argues his convictions for possession

of heroin, trafficking in heroin, possession of drug paraphernalia, and having weapons under

disability are not supported by sufficient evidence because the state failed to prove he

knowingly controlled or possessed the drugs, weapons, and drug paraphernalia. In his fourth

assignment of error, appellant argues his convictions for possession of heroin, trafficking in

- 10 -
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

heroin, and having weapons under disability are against the manifest weight of the evidence

because there was no credible evidence he lived in the house, and thus that he knowingly

possessed the drugs and weapons.

{¶ 36} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence in order to determine whether such evidence, if

believed, would convince the average mind of the defendant's guilt beyond a reasonable

doubt. State v. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 16. 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." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus.

{¶ 37} A manifest weight of the evidence challenge, on the other hand, examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." Bradbury at ¶ 17. To determine whether a conviction is

against the manifest weight of the evidence, the reviewing court must look at the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of the

witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. Id. An appellate court will overturn a conviction

due to the manifest weight of the evidence only in extraordinary circumstances when the

evidence presented at trial weighs heavily in favor of acquittal. Id. at ¶ 18. A

"determination that a conviction is supported by the manifest weight of the evidence will also

be dispositive of the issue of sufficiency." State v. Peyton, 12th Dist. Butler No. CA2015-06-

112, 2017-Ohio-243, ¶ 48.

- 11 -
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

{¶ 38} Appellant was convicted of possession of heroin in violation of R.C. 2925.11(A),

trafficking in heroin in violation of R.C. 2925.03(A)(2), and possession of drug paraphernalia

in violation of R.C. 2925.14(C)(1). R.C. 2925.11(A) provides that "[n]o person shall knowingly

obtain, possess, or use a controlled substance[.]" R.C. 2925.03(A)(2) provides that

[n]o person shall knowingly * * * Prepare for shipment, ship,
transport, deliver, prepare for distribution, or distribute a
controlled substance or a controlled substance analog, when the
offender knows or has reasonable cause to believe that the
controlled substance or a controlled substance analog is
intended for sale or resale by the offender or another person.

R.C. 2925.14(C)(1) provides that "no person shall knowingly use, or possess with purpose to

use, drug paraphernalia."

{¶ 39} Appellant was also convicted of having weapons under disability in violation of

R.C. 2923.13(A)(3), which provides in relevant part that "no person shall knowingly acquire,

have, carry, or use any firearm or dangerous ordnance, if [t]he 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." All four offenses required the

state to prove "knowingly" as an element of the crime.

{¶ 40} 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. R.C.

2901.22(B). A person has knowledge of circumstances when he is aware that such

circumstances probably exist. Id. Knowledge can be ascertained from the surrounding facts

and circumstances in the case. State v. Anderson, 12th Dist. Fayette No. CA2008-07-026,

2009-Ohio-2521, ¶ 28, citing State v. Lott, 51 Ohio St.3d 160 (1990).

{¶ 41} 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

- 12 -
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

of the premises upon which the thing or substance is found." R.C. 2925.01(K). Possession

may be constructive or actual. State v. Williams, 12th Dist. Butler No. CA2014-09-180, 2015-

Ohio-2010, ¶ 14.

{¶ 42} "An accused has 'constructive possession' of an item when the accused is

conscious of the item's presence and is able to exercise dominion and control over it, even if

the item is not within the accused's immediate physical possession." State v. Jester, 12th

Dist. Butler No. CA2010-10-264, 2012-Ohio-544, ¶ 25. Constructive possession may be

proven by circumstantial evidence alone. Williams at ¶ 15. 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. Id.

{¶ 43} A person may knowingly possess or control property belonging to another; the

state need not establish ownership to prove constructive possession. Williams, 2015-Ohio-

2010 at ¶ 14. In addition, two or more persons may have possession of an object together if

they have the ability to control it, exclusive of others. State v. Weckner, 12th Dist. Brown No.

CA2001-06-009, 2002 Ohio App. LEXIS 1037, *6 (Mar. 11, 2002).

{¶ 44} Viewing the evidence in a light most favorable to the state, we find that

circumstantial evidence shows that appellant had constructive possession of the drug

paraphernalia. The record shows that the Milliken Street residence was appellant's given

residence for parole purposes, the police found mail addressed to appellant in the home,

appellant admitted to the police that the men's clothing found in the master bedroom was his,

and there was no evidence connecting any other adults to the house besides Jackson and

appellant. The record further shows that the bulk of the drug paraphernalia was in the

basement of the house, two digital scales were found in the master bedroom, and appellant

- 13 -
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

generally admitted to the police that everything in the house was his, and specifically

admitted that the scale was his. Appellant's conviction for drug paraphernalia possession

was thus supported by sufficient evidence.

{¶ 45} Upon a thorough review of the record, we further find the jury did not lose its

way in concluding appellant was an occupant of the home and knowingly controlled or

possessed the heroin and weapons. Given the presence of mail addressed to appellant in

the house, appellant's admission to the police that the men's clothing found in the master

bedroom was his, and his testimony that he moved back in the house on June 14, 2015, the

day before the search, and subsequently spent the night there, the record shows that

appellant lived in the house or at the very least was an occupant of the home. See Williams

(an individual need not reside at a particular address to possess drugs found inside).

{¶ 46} The record further shows that appellant had constructive possession of the

heroin and weapons. While appellant testified the heroin and three of the weapons belonged

to Ambach, and claimed the Jimenez handgun belonged to Jackson, appellant also testified

he knew that the heroin and weapons were in the house when he moved back on June 14,

2015, the day before the search. Appellant was thus conscious of the contraband. Williams,

2015-Ohio-2010 at ¶ 14. In addition, during the search of the house, appellant generally

admitted to the police that everything in the house was his. The record further shows that

appellant had access to the contraband while he was in the house, and that he had the ability

to exercise dominion and control over the contraband, as evidenced by his professed attempt

to return it to Ambach and his recorded lamentation he should have moved it out of the

house.

{¶ 47} These facts, taken together, show that appellant knowingly exercised dominion

and control over the heroin and weapons, even if only for a short time. The crucial issue is

- 14 -
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

not whether the accused had actual physical contact with the article concerned, but whether

the accused was capable of exercising dominion and control over it. State v. Bowerman, 9th

Dist. Medina No. 13CA0059-M, 2014-Ohio-4264, ¶ 7.

{¶ 48} With regard to drug trafficking, "[n]umerous courts have determined that plastic

baggies, digital scales, and large sums of money are often used in drug trafficking which

constitute circumstantial evidence that appellant was using these items to commit that crime."

State v. Harry, 12th Dist. Butler No. CA2008-01-013, 2008-Ohio-6380, ¶ 50. See also State

v. Kutsar, 8th Dist. Cuyahoga No. 89310, 2007-Ohio-6990; State v. Fain, 5th Dist. Delaware

No. 06CAA120094, 2007-Ohio-4854; State v. Smith, 3d Dist. Union No. 14-01-28, 2002-

Ohio-5051; and State v. Fry, 9th Dist. Summit No. 23211, 2007-Ohio-3240.

{¶ 49} The police found four clear plastic baggies of heroin for a total weight of 45.6

grams (or about two ounces) and $1,677 in cash in a safe in the master bedroom, two digital

scales and additional cash in that bedroom, and drug paraphernalia in the basement of the

home, including a C-clamp, Inositol powder, and a blender. The total amount of cash found

in the bedroom was $1,841. Detective Baker testified that the four baggies of heroin found in

the safe were packaged and prepared for sale, and that the drug paraphernalia found in the

house was used in drug trafficking. During the search, appellant admitted to the police that

the scale was his and lamented when he found out Jackson had given police access to the

safe. These facts, taken together, show that appellant was knowingly involved in trafficking

in heroin.

{¶ 50} In light of the foregoing, we find that appellant's convictions for heroin

possession, trafficking in heroin, and having weapons under disability are not against the

manifest weight of the evidence. Our determination that these convictions are supported by

the weight of the evidence is also dispositive of the issue of sufficiency. Peyton, 2017-Ohio-

- 15 -
 Butler CA2016-11-220
CA2016-11-221
CA2016-11-222

243 at ¶ 48.

{¶ 51} Appellant's third and fourth assignments of error are overruled.

{¶ 52} Judgment affirmed.

RINGLAND, P.J., and PIPER, J., concur.

- 16 -