[Cite as State v. Stewart, 2012-Ohio-4701.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Sheila G. Farmer, J.
-vs :
:
KEVIN M. STEWART : Case No. 11CAA100091
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 11CRI040227
JUDGMENT: Affirmed/Reversed in Part &
Remanded
DATE OF JUDGMENT: October 9, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
KYLE ROHRER JOHN R. CORNELY
140 North Sandusky Street 21 Middle Street
3rd Floor P.O. Box 248
Delaware, OH 43015 Galena, OH 43021-0248
Delaware County, Case No. 11CAA100091 2
Farmer, J.
{¶1} On April 15, 2011, the Delaware County Grand Jury indicted appellant,
Kevin Stewart, on one count of possessing drugs (Percocet) in violation of R.C.
2925.11. Said charge arose after an inventory search of appellant's vehicle following a
motor vehicle accident.
{¶2} A jury trial commenced on September 29, 2011. The jury found appellant
guilty as charged. By judgment entry filed September 30, 2011, the trial court
sentenced appellant to forty-eight months in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT'S
CONVICTION FOR POSSESSION OF DRUGS AS A FELONY OF THE THIRD
DEGREE, AS THE STATE PROVIDED NO EVIDENCE AS TO WHAT IS THE 'DAILY
DOSE' FOR 10 MG PERCOCET."
II
{¶5} "THERE WAS INSUFFICIENT EVIDENCE THAT APPELLANT
POSSESSED PERCOCET IN ANY AMOUNT."
III
{¶6} "THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE."
Delaware County, Case No. 11CAA100091 3
IV
{¶7} THE TRIAL COURT ERRED IN PERMITTING MS. SULLIVAN'S 'OTHER
ACTS' TESTIMONY INTO EVIDENCE AND DENIED APPELLANT HIS RIGHT TO A
FAIR TRIAL."
V
{¶8} "THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO A
FORTY-EIGHT MONTH TERM OF IMPRISONMENT AS A THIRTY-SIX MONTH TERM
OF IMPRISONMENT WAS THE MAXIMUM AVAILABLE SENTENCE."
VI
{¶9} "MISCONDUCT OF THE ASSISTANT PROSECUTING ATTORNEY IN
CLOSING ARGUMENTS DENIED APPELLANT THE RIGHT OF A FAIR TRIAL."
I
{¶10} Appellant claims there was insufficient evidence in the record to establish
the "daily dose" for 10mg of Percocet. We disagree.
{¶11} "Possession of drugs" is defined in R.C. 2925.11(A) as "[n]o person shall
knowingly obtain, possess, or use a controlled substance." Percocet is a Schedule II
controlled substance. R.C. 3719.01(C) and 3719.41(A)(1)(n). Possession of Percocet
is a felony of the third degree "[i]f the amount of the drug involved equals or exceeds the
bulk amount but is less than five times the bulk amount,***and there is a presumption
for a prison term for the offense." R.C. 2925.11(C)(1)(b).
{¶12} "Bulk amount" is defined as "[a]n amount equal to or exceeding twenty
grams or five times the maximum daily dose in the usual dose range specified in a
standard pharmaceutical reference manual of a compound, mixture, preparation, or
Delaware County, Case No. 11CAA100091 4
substance that is or contains any amount of a schedule II opiate or opium derivative."
R.C. 2925.01(D)(1)(d).
{¶13} A "unit dose" is defined as "an amount or unit of a compound, mixture, or
preparation containing a controlled substance that is separately identifiable and in a
form that indicates that it is the amount or unit by which the controlled substance is
separately administered to or taken by an individual." R.C. 2925.01(E).
{¶14} At the commencement of the trial, the following discussion was held on
the record:
{¶15} "THE COURT: Okay. What is the state's position to the bulk amount?
{¶16} "***
{¶17} "MR. ROHRER: Is it 15 or 30?
{¶18} "MR. CORNELY: For this preparation it is 30 tablets, and that comes from
the controlled substance reference table of the Ohio Drug Law Book.
{¶19} "THE COURT: Everyone is in agreement that the bulk amount is 30
tablets?
{¶20} "MR. CORNELY: Ten Milligrams.
{¶21} "THE COURT: And that is in the lab report, from Hamilton County or at
BCI?
{¶22} "MR. ROHRER: This is a BCI lab report, that indicates 58 and a half
tablets.
{¶23} "THE COURT: Okay. Okay. We have to add that in the jury instructions.
{¶24} "MS. CLINGER: Okay." T. at 14-15.
Delaware County, Case No. 11CAA100091 5
{¶25} During the jury instructions, the trial court stated "[y]ou are further
instructed that, by law, a bulk amount of the Schedule II controlled substance,
Oxycodone/Acetaminophen for a 10 milligram unit dose is 30 tablets." T. at 289.
{¶26} With the stipulation/agreement on the record and no objection to the trial
court's jury instructions, we find sufficient evidence to establish the bulk amount for
oxycodone (Percocet).
{¶27} Assignment of Error I is denied.
II, III
{¶28} Appellant claims his conviction for drug possession was against the
sufficiency and manifest weight of the evidence. We disagree.
{¶29} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks (1991), 61 Ohio St.3d 259. "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." Jenks at
paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On
review for manifest weight, a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine "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." State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State
v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be
exercised only in the exceptional case in which the evidence weighs heavily against the
Delaware County, Case No. 11CAA100091 6
conviction." Martin at 175. We note "circumstantial evidence may be more certain,
satisfying and persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353,
1992-Ohio-44. It is to be given the same weight and deference as direct evidence.
Jenks, supra.
{¶30} Appellant was convicted of possessing drugs (Percocet) in violation of
R.C. 2925.11(A) defined supra. Appellant argues there was no evidence to support the
guilty finding because no evidence was presented to establish that he knew the bottle of
Percocet was in the vehicle he was driving, his mother's vehicle.
{¶31} "Possession" is described in R.C. 2925.01(K) as "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." Possession may be actual or constructive. State v. Haynes
(1971), 25 Ohio St.2d 264. Constructive possession is when an individual is able to
exercise dominion or control over a seized item, even if the person does not have the
item within his/her immediate physical possession. State v. Wolery (1976), 46 Ohio
St.2d 316.
{¶32} Delaware County Sheriff's Deputy Troy Ellis testified he was called to
investigate an accident scene wherein appellant rear-ended another vehicle. T. at 87-
88, 90, 93. Appellant was the only person in his vehicle. T. at 90, 151. Both front seat
airbags had deployed. T. at 91. Because the vehicle was inoperable and appellant did
not have a valid driver's license, an administrative inventory was conducted and a bottle
of Percocet pills was found on the front passenger floor, near the front seat. T. at 94-
95. The pill bottle would have been visible to a person sitting in the driver's seat. T. at
Delaware County, Case No. 11CAA100091 7
96. A loose capsule was found under the driver's seat, but it was not a controlled
substance. T. at 103; State's Exhibit 7.
{¶33} Appellant's mother, Latella Stewart, testified she was the owner of the
vehicle and appellant had borrowed it without her knowledge. T. at 164. She testified
the pill bottle containing Percocet was not hers as she did not have a prescription for
Percocet, only Lotrel capsules for blood pressure. T. at 167-168. She had never seen
the Percocet pill bottle before. T. at 168.
{¶34} Doris Sullivan, Ms. Stewart's neighbor, testified she had been prescribed
10mg of Percocet for back pain. T. at 179-180. Appellant told her he was having
trouble getting pain pills, so she retrieved some pills from her bedroom and gave him
some in a small bottle. T. at 185-187. She originally offered him two, but he requested
the remaining pills (10-12). T. at 186-187. At that time, appellant told her the pills were
valuable if sold on the open market for $10.00 to $15.00 a pill. T. at 187. Ms. Sullivan
told him if he was going to sell them to give them back to her. T. at 188. Appellant
specifically asked "you don't want me to sell any of the pills" and she replied "that's
right." Id. Ms. Sullivan testified the bottle of pills found in the vehicle was not the bottle
she had given him. T. at 191, 196.
{¶35} Appellant denied getting any pills from Ms. Sullivan and offering to sell
pills for her. T. at 215. Appellant was using his mother's vehicle to get a back brace for
her when he rear-ended another vehicle. T. at 217-218, 228. He stated he had never
driven his mother's vehicle before. T. at 228. Appellant denied any knowledge of the
pill bottle in the vehicle and claimed it belonged to Ms. Sullivan. T. at 221-223, 226.
Delaware County, Case No. 11CAA100091 8
Appellant stated he was prescribed 5mg of Percocet while in Arizona, but did not have
any with him in Ohio. T. at 215-216, 229.
{¶36} The testimony showed appellant had exclusive control of the vehicle at the
time of the accident, appellant's mother, the owner of the vehicle, did not take Percocet,
appellant had a street awareness of the value of the Percocet pills in the open market,
and he was aware of Ms. Sullivan's prescription and the large bottle of pills in her
bedroom.
{¶37} Upon review, we conclude there was sufficient direct and circumstantial
evidence to support the conviction, and find no manifest miscarriage of justice.
{¶38} Assignments of Error II and III are denied.
IV
{¶39} Appellant claims the trial court erred in permitting "other acts" testimony in
violation of Evid.R. 404(B). We disagree.
{¶40} The admission or exclusion of evidence lies in the trial court's sound
discretion. State v. Sage (1987), 31 Ohio St.3d 173. In order to find an abuse of that
discretion, we must determine the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217.
{¶41} The discretion afforded a trial court in determining evidentiary issues on
other acts is tempered by Evid.R. 404(B) and R.C. 2945.59 which state the following,
respectively:
{¶42} "[Evid.R. 404(B)] Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
Delaware County, Case No. 11CAA100091 9
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.
{¶43} "[R.C. 2945.59] In any criminal case in which the defendant's motive or
intent, the absence of mistake or accident on his part, or the defendant's scheme, plan,
or system in doing an act is material, any acts of the defendant which tend to show his
motive or intent, the absence of mistake or accident on his part, or the defendant's
scheme, plan, or system in doing the act in question may be proved, whether they are
contemporaneous with or prior or subsequent thereto, notwithstanding that such proof
may show or tend to show the commission of another crime by the defendant."
{¶44} We note "relevant evidence" "means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable that it would be without the evidence." Evid.R. 401.
{¶45} The complained of testimony was elicited from Ms. Sullivan:
{¶46} "I gave them to him. He says do you know what those sell for on the open
market, or at market? I said no, I don't care about that. He says, well, these sell for $10
to $15 each. I said well, telling me that, he said well, he gets a lot of money from those.
I said I don't want to know what he said back. I said if there's any thought of you selling
them give them back to me right now, you will not sell any of my pills, never. I gave
them to help you. He stood there a minute and he said, you don't want me to sell any of
the pills? I said that's right. He says I won't sell any of your pills. I said you got it.
Okay, you can have them.
{¶47} "***
Delaware County, Case No. 11CAA100091 10
{¶48} "Yes. He walked out the door into the hallway, he stopped and he said
here's what will happen, someone will knock on your door to give you a pizza, bring the
pizza in, you open it and there will be an envelope in it with money. Then he just took
off." T. at 187-188.
{¶49} Prior to permitting the testimony, the trial court conducted an extensive
"voir dire" on her testimony. T. at 105-133. Appellant testified based upon a hearsay
comment made by his mother, the pill bottle found in the vehicle belonged to Ms.
Sullivan, and he told Deputy Ellis about the statement. T. at 151, 223-224.
{¶50} We conclude ownership and possession of the pill bottle was totally
relevant to the trial of this case. In addition, the complained of testimony established
the lack of mistake or identity.
{¶51} Upon review, we find the trial court did not abuse its discretion in admitting
the complained of testimony.
{¶52} Assignment of Error IV is denied.
V
{¶53} Appellant claims the trial court erred in sentencing him under H.B. No. 86.
We agree.
{¶54} By judgment entry filed September 30, 2011, the trial court sentenced
appellant to forty-eight months in prison for violating R.C. 2925.11, a felony of the third
degree. Prior to September 30, 2011, felonies of the third degree were punishable by
"one, two, three, four, or five years." See, Former R.C. 2929.14(A)(3).
{¶55} On September 30, 2011, H.B. No. 86 took effect which changed penalties
for felonies of the third degree as follows:
Delaware County, Case No. 11CAA100091 11
{¶56} "(3)(a) For a felony of the third degree that is a violation of section
2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a
violation of section 2911.02 or 2911.12 of the Revised Code if the offender previously
has been convicted of or pleaded guilty in two or more separate proceedings to two or
more violations of section 2911.01, 2911. 02, 2911.11, or 2911.12 of the Revised Code,
the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-
eight, fifty-four, or sixty months.
{¶57} "(b) For a felony of the third degree that is not an offense for which division
(A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen, twenty-
four, thirty, or thirty-six months." R.C. 2929.14(A)(3).
{¶58} The maximum sentence the trial court could have sentenced appellant to
was thirty-six months. Therefore, we find the trial court erred in sentencing appellant to
forty-eight months in prison. The state did not present any authority to the contrary.
See, Appellee's Brief at 22-23.
{¶59} Assignment of Error V is granted.
VI
{¶60} Appellant claims the prosecutor's comments during closing argument
unfairly prejudiced his rights to a fair trial. We disagree.
{¶61} The test for prosecutorial misconduct is whether the prosecutor's
comments and remarks were improper and if so, whether those comments and remarks
prejudicially affected the substantial rights of the accused. State v. Lott (1990), 51 Ohio
St.3d 160, certiorari denied (1990), 112 L.Ed.2d 596. In reviewing allegations of
Delaware County, Case No. 11CAA100091 12
prosecutorial misconduct, it is our duty to consider the complained of conduct in the
context of the entire trial. Darden v. Wainwright (1986), 477 U.S. 168.
{¶62} Appellant complains of the following comments:
{¶63} "But read State's Exhibit 8. Read the letter he wrote to Doris Sullivan.
Use your common sense and ask yourself why would he have written page 3 of what he
wrote, that she said this, this is what I told my attorney and the detective, and
quotations, it tells a fair story, that we saw clips of on the video, and you saw part of it,
just flat out are not true.
{¶64} "Ask yourself the next question, why? Because lying doesn't in and of
itself - - why would he lie in this particular case? Well, it was because I don't want to be
convicted of possession of drugs, which he was charged with in this case.
{¶65} "He talked to Doris Sullivan about the pills. He knows they were
accessible to him. He had that very specific intent. Do you believe Doris Sullivan
knows his specific intent and knows what he's going to do with those pills? And I
believe that there is no reasonable doubt in this case.
{¶66} "You saw what the defendant told you; how the defendant reacted to this.
He was clearly trying to send a message of some sort, and it wasn't the truth." T. at
265-267, 277, respectively.
{¶67} We find no undue prejudice as the complained of comments were
statements on the testimony and conclusions proposed from the evidence presented.
Furthermore, the trial court instructed the jury that closing arguments did not constitute
evidence. T. at 262.
{¶68} Assignment of Error VI is denied.
Delaware County, Case No. 11CAA100091 13
{¶69} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed in part and reversed in part.
By Farmer, J.
Delaney, P.J. and
Gwin, J. concur.
_s / Sheila G. Farmer______________
_s / Patricia A. Delaney____________
_s / W. Scott Gwin_________________
JUDGES
SGF/sg 906
[Cite as State v. Stewart, 2012-Ohio-4701.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
KEVIN M. STEWART :
:
Defendant-Appellant : CASE NO. 11CAA100091
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed in part
and reversed in part, and the matter is remanded to said court for resentencing. Costs
to be divided equally between appellant and appellee.
s / Sheila G. Farmer______________
_s / Patricia A. Delaney____________
_s / W. Scott Gwin_________________
JUDGES
State v. Stewart
Combined Opinion