State v. Bursey

[Cite as State v. Bursey, 2021-Ohio-2857.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28976
:
v. : Trial Court Case No. 2019-CR-3539
:
CHARLES E. BURSEY, III : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 20th day of August, 2021.

...........

MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066
Attorney for Defendant-Appellant

.............

TUCKER, P.J.
 -2-

{¶ 1} Defendant-appellant Charles E. Bursey, III appeals from his convictions for

having weapons under disability and possession of drugs. Bursey claims the convictions

were not supported by sufficient evidence and were against the manifest weight of the

evidence. He further claims that the trial court erred by overruling his motion to suppress

and abused its discretion regarding the admission of evidence. Finally, Bursey contends

his trial counsel was ineffective.

{¶ 2} Because we find no merit to Bursey’s arguments, the judgment of the trial

court is affirmed.

I. Facts and Procedural History

{¶ 3} On September 6, 2019, Trotwood Police Officer Roger Hoff travelled to

Sheikhs Bar and Grill to perform a permit check, which he described as a routine check

frequently done by the police department to ensure that local bars are in compliance with

their permits and to deter illegal activity. Hoff parked his cruiser in the tavern’s parking

lot and walked toward the entrance to the bar. At that time, he noticed a Jeep that was

backed into a parking spot but still running. As he passed the front of the Jeep, Hoff

observed a man lying back with his head slumped forward and his eyes closed. The

man, later identified as Bursey, appeared to be asleep or possibly unconscious. Hoff

shined his flashlight through the windshield, but Bursey did not react.

{¶ 4} Hoff then went to the back of the car and called in the license plate number

for a vehicle check. He also called for backup. Hoff then went to the passenger window

to determine whether the car was in park and whether Bursey’s foot was on the brake.

As Hoff shined his flashlight through the passenger window, he noted Bursey still failed
 -3-

to react. Hoff also observed a Glock handgun with an extended magazine in Bursey’s

lap.

{¶ 5} Hoff moved toward another vehicle and positioned himself so that he would

not be harmed if the Jeep moved or the gun discharged. As backup arrived, Hoff noted

Bursey began to move. Hoff observed Bursey leaning forward and down as if attempting

to conceal something. Bursey was exiting the car when he noticed Hoff and the other

officers, all of whom had their service weapons drawn. Bursey complied with instructions

to keep his hands visible. One of the assisting officers placed handcuffs on Bursey.

When Hoff approached the vehicle, he smelled the odor of marijuana emanating from

within. No other occupants were in the car.

{¶ 6} A search of the Jeep was conducted. The gun, with an inserted magazine,

was located under the front driver’s seat. The gun had a bullet loaded in the chamber,

and the magazine contained 31 rounds of ammunition. The gun was later determined to

be fully operable. Clear gel caps, which Hoff suspected contained heroin, were located

in the driver’s side door compartment and the glove box. The substance in the capsules

was tested by a forensic scientist employed by the Ohio Bureau of Criminal Investigation

(BCI). All of the capsules contained heroin and fentanyl. One of the capsules also

contained cocaine. Sixteen of the capsules also contained acetyl fentanyl.

{¶ 7} On December 3, 2019, Bursey was indicted on one count of having weapons

under disability in violation of R.C. 2923.13(A)(3), one count of improper handling of a

firearm in a motor vehicle in violation of R.C. 2923.16(B), one count of possession of a

fentanyl-related compound in violation of R.C. 2925.11(A), one count of possession of

heroin (10-50 unit dose) in violation of R.C. 2925.11(A), and one count of possession of
 -4-

cocaine (less than 5 grams) in violation of R.C. 2925.11(A). Bursey filed a motion to

suppress evidence in January 2020. Following a hearing, the trial court denied the

motion.

{¶ 8} The matter proceeded to trial in October 2020. Hoff testified to the above-

cited facts, while the forensic scientist who tested the capsules provided testimony

regarding her testing and the results thereof. Further, the State presented the testimony

of a criminal investigator who testified regarding recorded telephone calls made by Bursey

while he was in jail awaiting trial.

{¶ 9} Bursey also testified at trial. According to Bursey, he had been in the Jeep

with friends during the course of the day prior to going to Sheikhs. Bursey testified that

his girlfriend had been driving. He testified that they parked at the bar and the others

went inside. However, Bursey testified that he was feeling drowsy and decided to remain

in the vehicle; he began to get hot so he crawled into the driver’s seat and turned the

Jeep on so that the vehicle’s air conditioner could be activated. Bursey testified that he

fell asleep but had awakened and was exiting the Jeep to go into the bar when the police

officers confronted him.

{¶ 10} Bursey further testified that the Jeep did not belong to him and he did not

have a gun in his lap when he fell asleep in the vehicle. Bursey testified that he normally

keeps his two cellphones in his lap whenever he is sitting in a car, and that Hoff may have

seen the phones and thought they were a gun. However, Bursey admitted that he did

not remember whether the phones were actually in his lap at that time.

{¶ 11} Following the trial, the jury convicted Bursey on all the charges except for

the charge of improper handling of a firearm in a motor vehicle. The trial court sentenced
 -5-

him to an aggregate prison term of 12 months.

{¶ 12} Bursey appeals.

II. Motion to Suppress

{¶ 13} In his first assignment of error, Bursey asserts:

THE TRIAL COURT ERRED WHEN IT OVERRULED BURSEY’S MOTION

TO SUPPRESS THE EVIDENCE.

{¶ 14} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial

court's findings of fact if they are supported by competent, credible evidence. * * *

Accepting these facts as true, the appellate court must then independently determine,

without deference to the conclusion of the trial court, whether the facts satisfy the

applicable legal standard.” (Citations omitted.) Id.

{¶ 15} The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968). Warrantless searches and seizures violate this prohibition unless

conducted pursuant to one of the “few specifically established and well-delineated

exceptions.” (Citations omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507,

19 L.Ed.2d 576 (1967).

{¶ 16} One of those exceptions is the plain view doctrine, which permits a
 -6-

warrantless seizure of incriminating evidence when “(1) the officers are lawfully positioned

in a place from which the object can be plainly viewed, (2) the incriminating character of

the object is immediately apparent, and (3) the officer has a lawful right of access to the

object itself.” State v. Garrett, 2d Dist. No. 27630, 2018-Ohio-4530, 123 N.E.3d 327,

¶ 22, quoting State v. Goode, 2d Dist. Montgomery No. 25175, 2013-Ohio-958, ¶ 26,

citing Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)

and Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

{¶ 17} In this case, there is no doubt that Hoff was lawfully permitted to view the

interior of the Jeep. As Hoff was walking through the parking lot toward the entrance of

the bar, he glanced into the front of the Jeep and noted that the lone, male occupant

appeared to be either asleep or unconscious while the vehicle was running. Hoff then

shined his flashlight, which he described as being more powerful than average, through

the windshield and noted that Bursey did not react. Hoff decided to conduct a check on

Bursey to make sure he was not unconscious due to a medical problem or intoxication.

Hoff also testified that he had a concern for the general safety of the public because

Bursey appeared to be asleep or unconscious in a running car in a parking lot; Hoff

wanted to look in the passenger window to ensure the vehicle was in park. When Hoff

again shined his flashlight and looked in the passenger window, he again noted that

Bursey did not react.1 He further observed what he recognized as a Glock firearm with

1
Hoff used a flashlight to illuminate the interior of the vehicle. But “use of a flashlight by
a police officer does not negate the fact that an item is otherwise in plain view or that its
discovery is inadvertent.” State v. White, 2d Dist. Montgomery No. 18731, 2002 WL
63294, *5 (Jan. 18, 2002), quoting State v. Ward, 2d Dist. Montgomery No. 14186, 1994
WL 645964 (Nov. 16, 1994); Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75
L.Ed.2d 502 (1983).
 -7-

an extended magazine in Bursey’s lap. 2 At this point, Hoff was outside of Bursey’s

vehicle in a place he was permitted to be, conducting a brief check on Bursey’s well-being

and ensuring the safety of the general public. This minimal intrusion, if any, was

legitimate, and it created a sufficient basis to permit Hoff to investigate further.

{¶ 18} Hoff testified that, after he observed Bursey’s failure to react to the flashlight

and the handgun in Bursey’s lap, he wanted to investigate whether Bursey was violating

R.C. 4511.194(B)(2), which provides that “[n]o person shall be in physical control of a

vehicle * * * if, at the time of the physical control, * * * [t]he person's whole blood, blood

serum or plasma, breath, or urine contains at least the concentration of alcohol specified

in division (A)(1)(b), (c), (d), or (e) of section 4511.19 of the Revised Code.” “ ‘Physical

control’ means being in the driver's position of the front seat of a vehicle * * * and having

possession of the vehicle's * * * ignition key or other ignition device.” R.C.

4511.194(A)(2). Hoff also testified that Bursey’s possession of the gun raised an issue

as to whether Bursey was in violation of R.C. 2923.16(B), which states, “[n]o person shall

knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the

firearm is accessible to the operator or any passenger without leaving the vehicle.”

{¶ 19} Another of the recognized exceptions to the warrant requirement is an

investigative detention, commonly referred to as the Terry stop. Under Terry v. Ohio,

392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer may detain an individual

without probable cause when the officer has reasonable suspicion, based on specific,

articulable facts, that criminal activity is afoot. Id. at 21. Reasonable suspicion entails

2
Hoff testified he is a certified firearms instructor and has more than 300 hours of firearm
training in addition to his regular training.
 -8-

some minimal level of objective justification, “that is, something more than an inchoate

and unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for

probable cause.” State v. Jones, 70 Ohio App.3d 554, 556-557, 591 N.E.2d 810 (2d

Dist.1990), citing Terry at 27. Upon observing Bursey asleep or unconscious with what

appeared to be a loaded handgun in the parking lot of a bar, Hoff had reasonable

suspicion, at the very least, to conduct a Terry investigative detention.

{¶ 20} As stated, as backup officers arrived, Bursey began to move around inside

the vehicle, and he moved in such a manner as to cause Hoff to think he was attempting

to conceal something. Bursey then exited the car of his own accord before noticing the

officers. According to Hoff, when he approached the Jeep, he noted the smell of

marijuana emanating from within it.3 The odor of marijuana provided both suspicion that

Bursey, who was the only occupant, was in possession of marijuana and that the

contraband was located in the vehicle. “The smell of marijuana, alone, by a person

qualified to recognize the odor, is sufficient to establish probable cause to conduct a

search.” State v. Moore, 90 Ohio St.3d 47, 51, 734 N.E.2d 804 (2000), syllabus.

{¶ 21} Based upon the record before us, we conclude that the trial court did not err

in finding that Hoff’s search of the vehicle was legally permitted. The plain-view

observation of the handgun on Bursey’s lap, as well as the observation that Bursey was

non-responsive in a bar parking lot, established probable cause to enter the vehicle to

seize the gun. However, before Hoff could do so, Bursey exited the vehicle of his own

accord. When Hoff approached the Jeep, he smelled marijuana, which established

3
Hoff testified that he is familiar with the smell of both raw and burned marijuana as a
result of his involvement with multiple law enforcement task forces. The trial court
specifically found Hoff’s testimony credible, and we find no basis to disagree.
 -9-

probable cause to search the vehicle.

{¶ 22} Accordingly, the first assignment of error is overruled.

III. Evidentiary Issues

{¶ 23} Bursey’s second assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED

THE PHOTOS, DRUGS, AND THE JAIL CALLS AT TRIAL.

{¶ 24} “The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.” State v. Williams, 2d Dist. Montgomery No. 26369, 2016-

Ohio-322, ¶ 17, quoting State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987).

Thus, a trial court’s decision regarding the admissibility of evidence will not be reversed

on appeal absent an abuse of discretion. O'Brien v. Angley, 63 Ohio St.2d 159, 163, 407

N.E.2d 490 (1980). The term “abuse of discretion” implies an attitude on the part of the

trial court that is arbitrary, capricious or unconscionable. AAAA Ents., Inc. v. River Place

Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 25} Bursey first asserts that the trial court erred by admitting photographs taken

by Hoff which depicted the interior of the Jeep and the evidence collected therein.

Bursey’s main complaints are that the photographs of the Jeep’s interior were taken after

the contraband was removed and that the pictures of that contraband show it laid neatly

on what appears to be a desk or a table. He further claims Hoff had “difficulty” explaining

where the contraband was located. Bursey argues this “may [have] confuse[d] the issue

of constructive possession.” Bursey also contends that, because the actual drugs and
 -10-

gun were shown to the jury, the photographs were unnecessarily cumulative and

prejudicial.

{¶ 26} In accord with Evid.R. 403, a trial court may exclude evidence when its

probative value is “substantially outweighed by considerations of undue delay or needless

presentation of cumulative evidence. The mere fact that evidence is repetitive will not

be considered reversible error unless the defendant was unfairly prejudiced thereby.”

(Citations omitted.) State v. Baker, 2d Dist. Montgomery No. 23933, 2011-Ohio-1820,

¶ 16. “The pertinent question is whether the evidence was unfairly prejudicial to the

defendant, not whether it was unfavorable to him.” Id.

{¶ 27} In this case, photos showing the interior of the Jeep were relevant to Hoff’s

testimony regarding the location of the gun and drugs. The photos also helped to

establish the issues of Hoff’s proximity to, and the accessibility of, the gun and drugs,

issues relevant to constructive possession. We find no merit in the claim that Hoff had

difficulty explaining the photos, and we find no basis for concluding the photos were likely

to confuse the jury regarding the issue of constructive possession. Hoff explained that

the photos were merely of the Jeep’s interior; he did not claim they showed the gun or

drug capsules prior to their removal from the Jeep. Further, although the introduction of

the photos of the gun and drug capsules was cumulative in that the actual gun and drugs

were introduced at trial, we cannot say, and Bursey does not explain, how this resulted in

any unfair prejudice. Therefore, we conclude the trial court did not abuse its discretion

by allowing the introduction of the photographs.

{¶ 28} Bursey next asserts that the State failed to establish a proper chain of

custody regarding the drug capsules. Specifically, he claims that although the capsules
 -11-

were properly placed in the police property room by Hoff, there was no evidence

presented regarding how the capsules were conveyed to the BCI laboratory for testing.

Thus, he contends that “alterations, substitution and tampering could have taken place.”

{¶ 29} “Although the state bears the burden of establishing a proper chain of

custody, that duty is not absolute.” State v. Blevins, 36 Ohio App.3d 147, 150, 521

N.E.2d 1105 (10th Dist.1987), citing State v. Moore, 47 Ohio App.2d 181, 353 N.E.2d 866

(9th Dist.1973). “The state need only establish that it is reasonably certain that

substitution, alteration or tampering did not occur.” Id. “Moreover, a chain of custody

can be established by direct testimony or by inference.” In re Lemons, 77 Ohio App.3d

691, 693, 603 N.E.2d 315 (8th Dist.1991), citing State v. Conley, 32 Ohio App.2d 54, 60,

288 N.E.2d 296 (3rd Dist.1971). “The issue of whether there exists a break in the chain

of custody is a determination left up to the trier of fact.” Id., citing Columbus v. Marks,

118 Ohio App. 359, 194 N.E.2d 791 (10th Dist.1963). “Any breaks in the chain of custody

go to the weight afforded to the evidence, not to its admissibility.” Id.

{¶ 30} Hoff testified that he placed the capsules in packaging which he sealed and

initialed. He also placed an evidence tag on the package, which he identified as having

his writing. The forensic scientist who then tested the capsules at the BCI lab testified

that the evidence package was sealed when she received it for testing. She also testified

that, when evidence comes into BCI, it is given a barcode with its own case number and

item number. Both Hoff and the scientist testified that the capsules admitted at trial were

in the packaging sealed and sent to BCI.

{¶ 31} Based upon this evidence, we conclude that although the State did not

present direct evidence of the chain of custody regarding who transported the capsules
 -12-

to BCI from the police property room, the trial court reasonably inferred that the capsules

that were tested had not been compromised. Thus, the trial court did not abuse its

discretion in admitting the capsules and the testimony regarding those capsules and their

contents.

{¶ 32} Finally, Bursey asserts that the trial court erred in admitting recordings

purporting to be telephone conversations Bursey had while in jail. The record shows the

State presented the testimony of its investigator, Tyson Dillon, who testified that the

Montgomery County Jail uses the Pay Tel communication system to record outgoing calls

made by inmates. He testified that the system tracks the inmates’ numbers and any calls

they make. The system generates a spreadsheet which sets forth the inmate number,

calls made, date and time of the calls, and the size of the recording file. Dillon further

testified that only law enforcement and persons granted special permission are permitted

to access the system. He testified he was granted permission to access the spreadsheet

and to record two calls made by Bursey from the jail.

{¶ 33} The State then presented its Exhibit 9, which Dillon testified was a CD-R of

two calls made by Bursey, which Dillon had downloaded and recorded. Dillon testified

that he had placed his initials on the CD-R disk; he then identified his initials and testified

that Exhibit 9 was the CD-R of the two telephone calls he created. The State then played

the disc from a computer placed near the jury. Afterward, the prosecutor addressed

Dillon as follows: “I know that was probably a little difficult for you to hear; could you hear

it from where you’re at?” Tr. 187. When the prosecutor interjected and asked if it was

a fair and accurate recording to the recorded calls, Dillon replied “Briefly, well, yeah - -.”

Dillon then stated, “[i]t appears to be, yes.” Id.
 -13-

{¶ 34} Defense counsel then objected to the introduction of the exhibit. After

discussions between the court and counsel, the court sustained the objection. The

prosecutor then began to question Dillon again, at which point Dillon indicated that he

had not been “able to hear [the recording] very well” when it was initially played for the

jury. Tr. 190. The State then replayed the recording, after which Dillon testified that it

was a true and accurate recording of the evidence he downloaded from the Pay Tel

system. The trial court then admitted the exhibit. We conclude that the error identified

by Bursey was properly remedied in the trial court, and thus we find no error in the

introduction of the exhibit.

{¶ 35} We also note that Bursey claims the trial court instructed the prosecutor,

whom he claims appeared confused concerning how to conduct a proper authentication,

as to the correct procedure for doing so. We disagree. Instead, a review of that portion

of the transcript demonstrates that the court was merely attempting to clarify the gist of

defense counsel’s objection, which was originally stated somewhat confusingly but which

was ultimately clarified as being a failure to properly authenticate. Thus, any claim of

impropriety is without merit.

{¶ 36} Bursey also raises an issue regarding the State’s failure to provide evidence

“concerning the direct link,” “voice recognition,” or the day the calls were made. Based

upon this, he argues the State did not “lay the proper foundation linking Bursey to the

calls.” This argument was not presented to the trial court. As such, the issue was not

preserved for appellate review.

{¶ 37} The second assignment of error is overruled.
 -14-

IV. Ineffective Assistance

{¶ 38} Bursey’s third assignment of error is as follows:

COUNSEL WAS INEFFECTIVE FOR FAILURE TO OBJECT TO

INADMISSIBLE EVIDENCE AT TRIAL

{¶ 39} In order to succeed on an ineffective assistance claim, a defendant must

establish that trial counsel's performance was deficient and the deficient performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989), paragraph two of the syllabus. The failure to make a showing of either

deficient performance or prejudice defeats a claim of ineffective assistance of counsel.

Strickland at 697. To establish deficient performance, a defendant must show that his

trial counsel's performance fell below an objective standard of reasonable representation.

Id. at 688; Bradley at 142. To establish prejudice, a defendant must show that there is

“a reasonable probability that, but for counsel's errors, the proceeding's result would have

been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶

204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus.

{¶ 40} Bursey asserts counsel was ineffective because he failed to object to the

introduction of the drug capsules and to the introduction of the photographs taken by Hoff.

However, he admits counsel “may have strategically argued the evidence’s faults to the

jury, [but] admission of the evidence should have been objected to.”

{¶ 41} As stated in our discussion of the first assignment of error, the trial court did

not abuse its discretion regarding the admission of the photos or the drugs. The “failure

to do a futile act cannot be the basis for [an] ineffective assistance [claim], nor could such
 -15-

a failure be prejudicial.” State v. Powell, 2019-Ohio-4345, 134 N.E.3d 1270, ¶ 69 (8th

Dist.), citing State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 37.

Accord State v. Ropp, 2d Dist. Champaign No. 2018-CA-44, 2020-Ohio-824, ¶ 74. As

admitted by Bursey, defense counsel argued the claimed deficiencies in the evidence

during closing argument. And counsel may well have decided that doing so was a better

strategy than making an objection that would almost certainly have been overruled. This

court will not second guess “debatable” strategies or tactics used during trial. Ropp at

¶ 67.

{¶ 42} Because we cannot conclude that the failure to object to the admission of

the photos and drugs constituted ineffective assistance of counsel, the third assignment

of error is overruled.

V. Sufficiency and Manifest Weight of the Evidence

{¶ 43} The fourth assignment of error asserted by Bursey states:

THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT AND

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN

BURSEY’S CONVICTIONS

{¶ 44} Bursey’s claims the State failed to introduce evidence sufficient to prove he

was in possession of either the gun or the drugs.

{¶ 45} “A sufficiency of the evidence argument disputes 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. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678
 -16-

N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), which states:

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.

(Citation omitted.) Id. at paragraph two of the syllabus.

{¶ 46} In contrast, “[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 persuasive.” (Citation omitted.) Wilson at ¶ 12. In this situation, a

“ ‘court, reviewing the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. The discretionary power

to grant a new trial should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 47} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a
 -17-

finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-

881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d 501,

¶ 58 (2d Dist.). As a result, “a determination that a conviction is supported by the weight

of the evidence will also be dispositive of the issue of sufficiency.” (Citations omitted.)

State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

{¶ 48} Another important point is that, “[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.” State v. Lawson, 2d Dist. Montgomery No. 16288,

1997 WL 476684, *4 (Aug. 22, 1997).

{¶ 49} Bursey was convicted of having weapons while under disability, in violation

of R.C. 2923.13, and possession of drugs, in violation of R.C. 2925.11(A). R.C. 2923.13

states in pertinent part: “[u]nless relieved from disability under operation of law or legal

process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous

ordnance * * *.” In order to “have” a firearm for purposes of R.C. 2923.13, a person must

actually or constructively possess it. State v. Fleming, 2d Dist. Clark No. 2014-CA-136,

2015-Ohio-5382, ¶ 26. R.C. 2925.11(A) prohibits a person from knowingly possessing

drugs; possession of a drug may be either actual physical possession or constructive

possession. State v. Mabry, 2d Dist. Montgomery No. 21569, 2007-Ohio-1895, ¶ 18.

“A person acts knowingly, regardless of purpose, when the person is aware that the
 -18-

person's conduct will probably cause a certain result or will probably be of a certain

nature. A person has knowledge of circumstances when the person is aware that such

circumstances probably exist.” R.C. 2901.22(B).

{¶ 50} “ ‘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.”

R.C. 2925.01(K). Possession can either be actual or constructive. State v. Wolery, 46

Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). A person has constructive possession of

an object when he is conscious of the presence of the object and able to exercise

dominion and control over it, even if it is not within his immediate physical possession.

State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus.

“Establishment of ownership is not required.” State v. Rastbichler, 2d Dist. Montgomery

No. 25753, 2014-Ohio-628, ¶ 33. Readily usable drugs in close proximity to an accused

may constitute sufficient circumstantial evidence to support a finding of constructive

possession. State v. Ruby, 149 Ohio App.3d 541, 2002-Ohio-5381, 778 N.E.2d 101,

¶ 36 (2d Dist.). In determining whether an individual possessed an item, it is necessary

to consider all of the facts and circumstances surrounding the incident. Mabry at ¶ 20.

Circumstantial evidence and direct evidence have the same probative value. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).

{¶ 51} Hoff testified that he looked in the passenger window of the Jeep and

observed a handgun in Bursey’s lap. The jury was free to believe this testimony over

that of Bursey and could have reasonably relied on this evidence to determine that Bursey

had actual possession of the gun. Additionally, while Hoff was watching the vehicle, he
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observed Bursey bend forward and downward as if to conceal something. The handgun

was later found under Bursey’s seat and, thus, had been within reach of Bursey.

Therefore, the evidence also demonstrated that Bursey was in close proximity to the

handgun such that he was capable of exercising dominion and control over the gun, which

constituted circumstantial evidence that he was in constructive possession of it.

{¶ 52} From a review of the record, Bursey did not have actual possession of the

drugs at the time Hoff observed him, but as stated above, the State was not required to

prove actual possession. Bursey also asserts the State did not prove constructive

possession because his testimony established the Jeep did not belong to him and that he

did not place, and had no knowledge of, either the gun or the drugs in the vehicle. When

asked by the prosecutor whether he had been involved in obtaining the temporary license

tags on the Jeep at the time of the incident, Bursey responded negatively.

{¶ 53} However, the State presented evidence that Bursey was the sole occupant

of the Jeep at the time Hoff encountered him. The State further presented evidence that

Bursey made a call from jail to a woman whom he instructed to pick up the Jeep at the

bar. Bursey later indicated that the Jeep had probably been towed and that she could

get the title and money out of his drawer in order to retrieve it from the towing company

lot. Bursey also testified that, at his request, an individual he identified as “Day Day”

obtained the temporary tags for the vehicle. Finally, he stated he had placed rent money

in the driver’s door pocket.

{¶ 54} The discussions in the recorded calls belied Bursey’s claim that he was

merely a passenger in his friend’s car at the time they went to the bar. Indeed, based

upon the calls, the jury could have reasonably concluded that Bursey did own the Jeep
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and that his claim otherwise was not credible. Further, the jury could have inferred from

Bursey’s statement that he had money in the driver’s door pocket that he not only owned

the Jeep, but was aware of the contents of the door pocket, which included 16 drug

capsules. Finally, the jury could have reasonably found constructive possession of drugs

given their close proximity and accessibility to Bursey, who was in the driver’s seat of a

vehicle which he occupied.

{¶ 55} We conclude the State presented evidence sufficient to demonstrate actual

possession of the handgun and constructive possession of the drug capsules. We

further find that his convictions for possession of those items were not against the

manifest weight of the evidence. Therefore, the fourth assignment of error is overruled.

VI. Conclusion

{¶ 56} All of Bursey’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

.............

WELBAUM, J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
J. Joshua Rizzo
Johnna M. Shia
Hon. Timothy N. O’Connell