The opinion
[Cite as State v. Hancock, 2010-Ohio-4854.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 09-JE-30
)
JAYCE HANCOCK, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Jefferson County, Ohio
Case No. 08CR182A
JUDGMENT: Affirmed in Part
Remanded
APPEARANCES:
For Plaintiff-Appellee Jane Hanlin
Assistant County Prosecutor
Jefferson County Justice Center
16001 State Route 7
Steubenville, Ohio 43952
For Defendant-Appellant Attorney Anthony T. Kaplanis
701 Courtyard Centre
116 Cleveland Avenue NW
Canton, Ohio 44702
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: September 29, 2010
[Cite as State v. Hancock, 2010-Ohio-4854.]
DONOFRIO, J.
{¶1} Defendant-appellant, Jayce Hancock, appeals from a Jefferson County
Common Pleas Court judgment convicting him of two counts of having weapons
under disability and one count of possession of drugs, following a jury trial.
{¶2} On November 13, 2008, police arranged a controlled crack cocaine buy
from Charnay Young through a confidential informant. Based on this controlled buy
and other indications of drug activity at Young’s house, police obtained a search
warrant for her house. The Jefferson County drug task force executed the warrant
later that night.
{¶3} Appellant was present in Young’s house when police executed the
warrant along with Young, her brother Darnell Young, her cousin Michael Curenton,
and her one-year-old son. When the police entered the house, they ordered
everyone to the floor. Appellant did not initially comply. According to Detective
Jason Hanlin, appellant remained standing directly in front of the couch. Appellant
then fell back onto the couch with his hand in between the couch cushions and the
back of the couch. Detective Hanlin ordered appellant to show his hands. After
numerous orders, appellant eventually complied.
{¶4} The officers handcuffed everyone and took them outside. Then they
searched the house. In the couch where appellant was sitting, police found a .357
Taurus Magnum revolver, a .25 Raven Arms pistol, and crack cocaine. Some of the
crack cocaine and the Magnum were found under the cushion where appellant had
been sitting. The Raven was found in the spot in the couch where appellant had
stuck his hand when he fell back on the couch. And the rest of the cocaine was
found behind the couch as if it had fallen between the spring portion and the backrest
of the couch.
{¶5} Appellant was arrested and charged with possessing the crack cocaine
and the guns found in the couch. Young was also arrested and charged with drug
trafficking from the earlier sale and drug possession for additional cocaine that was
found on her person. Darnell Young and Curenton were not arrested on any
charges.
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{¶6} A Jefferson County grand jury indicted appellant on two counts of
having a weapon under disability, third-degree felonies in violation of R.C.
2923.13(A)(3), and one count of possession of drugs, a fourth-degree felony in
violation of R.C. 2925.11(A)(C)(4)(b).
{¶7} The matter proceeded to a jury trial where the jury found appellant
guilty of the two counts of having a weapon under disability and an amended count of
possession of drugs, which was a fifth-degree felony. The court later sentenced
appellant to three years on each of the having a weapon under disability counts and
12 months on the drug possession count. The court ordered that appellant serve his
sentences consecutively for a total of seven years in prison.
{¶8} Appellant filed a timely notice of appeal on August 17, 2009.
{¶9} Appellant raises four assignments of error, the first of which states:
{¶10} “THE TRIAL COURT ERRED IN ADMITTING TESTIMONY
REGARDING THE COCAINE POSSESSION CHARGE AS THE STATE FAILED TO
COMPLY WITH R.C. 2925.41[sic.] AND RULE 702.”
{¶11} For unknown reasons, the alleged crack cocaine in this case was never
tested in a laboratory. Consequently, the state relied on Detective Hanlin’s field
testing and visual identification in order to establish that the substance found was
indeed crack cocaine.
{¶12} After seizing the substance believed to be crack cocaine from Young’s
house, Detective Hanlin conducted a field test on the substance, which tested
positive for crack cocaine. On the day of trial, Detective Hanlin conducted a second
field test on the substance, which again tested positive for crack cocaine. Appellant
moved for a mistrial or, in the alternative, objected to the admission of these results.
(Tr. 269). The court overruled appellant’s motion and objection and allowed the state
to present the evidence of Detective Hanlin’s field tests. (Tr. 271).
{¶13} Appellant makes two arguments here. First, he contends that the trial
court erred in allowing the evidence of the field tests.
{¶14} The admission or exclusion of evidence is within the trial court’s broad
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discretion and this court will not reverse its decision absent an abuse of that
discretion. State v. Mays (1996), 108 Ohio App.3d 598, 617. Abuse of discretion
connotes more than an error of law or judgment; it implies that the trial court’s
judgment was unreasonable, arbitrary, or unconscionable. State v. Adams (1980),
62 Ohio St.3d 151, 157.
{¶15} In support of his argument, appellant first relies on R.C. 2925.51(A) and
(B).
{¶16} R.C. 2925.51(A) provides that in a criminal prosecution for various
offenses, including possession of controlled substances, a signed lab report from
certain accredited laboratories setting out findings as to content, weight, and identity
serves as prima facie evidence of the content, weight, and identity of the substance.
R.C. 2925.51(B) provides that the prosecutor must provide a copy of the lab report to
defense counsel prior to any hearing in which the lab report will be used against the
accused.
{¶17} R.C. 2925.51 sets out the requirements for a lab report offered as
evidence that a certain substance is in fact a controlled substance. The requirements
include a notarized statement describing the training and experience of the tester. It
further provides that such a report is prima facie evidence as to content, weight, and
identity of a controlled substance. But nowhere does this statute require that the
prosecution present such a lab report. Thus, appellant’s reliance on this statute is
somewhat misplaced.
{¶18} Yet it seems that had the legislature intended that field tests be
admissible as prima facie evidence of a substance’s identity, it would have enacted
similar requirements for field tests if they too were to be admissible as prima facie
evidence. The fact that no such requirements exist, seems to indicate that a field test
is not prima facie evidence of a substance’s identity. Nonetheless, while a field test
may not be prima facie evidence of a substance’s identity, it can still have some
evidentiary value.
{¶19} Appellant next points out that Detective Hanlin testified that the normal
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practice after seizing what he believes to be a controlled substance and doing the
initial field test is to have the substance tested at a laboratory. And Detective Hanlin
acknowledged that he had learned that a presumptive test could turn out to be
incorrect.
{¶20} Detective Hanlin testified as to the type of test he performed. He stated
that it is commonly referred to as a “color indication” test. (Tr. 353). He stated that
the test includes a small, plastic ampule that contains chemicals. (Tr. 353). To that
ampule he adds a small portion of the suspected drug and when it mixes with the
chemicals it will turn a color. (Tr. 354). The color will turn from pink to blue if the
substance in question is crack cocaine. (Tr. 354).
{¶21} Appellant is correct as to Detective Hanlin’s testimony. Detective
Hanlin admitted that it is normal procedure to have a seized substance tested in a
laboratory after it is field-tested. (Tr. 365). He further testified that it is possible for a
field test to be incorrect. (Tr. 366-67). But he also stated that he never had a false
positive with cocaine or crack cocaine during his thousands of tests. (Tr. 367).
{¶22} Relevant evidence is any evidence tending to make a fact at issue more
or less probable than it would be without the evidence. Evid.R. 401. Generally,
relevant evidence is admissible. Evid.R. 402.
{¶23} Although the better practice here would have been to follow up the field
tests with a laboratory test, we cannot conclude that the trial court abused its
discretion in allowing the results of the field tests. While Detective Hanlin stated that
it is normal procedure to submit a presumed drug for laboratory testing, he never
stated that the failure to do so here in any way affected the field test results. And
while he stated that it is “possible” to have a false positive with cocaine or crack
cocaine, he further stated that he has never seen this occur in his thousands of field
tests. Importantly, the jury had all of this information before it in determining what
weight to give the field test results. Thus, the trial court did not abuse its discretion in
admitting evidence of the field tests.
{¶24} Second, appellant argues that even if the field tests were admissible,
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the trial court erred in finding Detective Hanlin qualified to testify regarding the test
results. He asserts that Detective Hanlin did not meet the requirements for testifying
as an expert under Evid.R. 702.
{¶25} Whether a witness is qualified to testify as an expert is a matter within
the trial court’s discretion. State v. Awkal (1996), 76 Ohio St.3d 324, 331. Therefore,
we will review a trial court’s decision to qualify a witness as an expert for abuse of
discretion.
{¶26} Evid.R. 702 provides the qualifications a person must meet in order to
be called as an expert:
{¶27} “A witness may testify as an expert if all of the following apply:
{¶28} “(A) The witness' testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a misconception
common among lay persons;
{¶29} “(B) The witness is qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding the subject matter of the testimony;
{¶30} “(C) The witness' testimony is based on reliable scientific, technical, or
other specialized information. To the extent that the testimony reports the result of a
procedure, test, or experiment, the testimony is reliable only if all of the following
apply:
{¶31} “(1) The theory upon which the procedure, test, or experiment is based
is objectively verifiable or is validly derived from widely accepted knowledge, facts, or
principles;
{¶32} “(2) The design of the procedure, test, or experiment reliably
implements the theory;
{¶33} “(3) The particular procedure, test, or experiment was conducted in a
way that will yield an accurate result.”
{¶34} Detective Hanlin testified as follows regarding his knowledge and
experience in drug identification and specifically in crack cocaine identification.
{¶35} As part of his training as a police officer and as part of his role as a
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detective with the narcotics division, Detective Hanlin has received training in the
area of identification of controlled substances. (Tr. 350). He has attended numerous
state agencies’ training programs as well as federal DEA training that dealt
specifically with the identification of narcotics. (Tr. 351). He has been trained how to
visually identify substances and how to perform field testing. (Tr. 351). Further,
Detective Hanlin stated:
{¶36} “The bulk of my cases deal with crack cocaine or powder cocaine. It’s a
substance that I deal with almost on a daily basis. To me it’s almost second nature.
I’ve done it for years. I’m able to identify that as crack cocaine even though it looks
very similar somewhat to I guess the ordinary person powder cocaine. From what I
do I’m easily able to identify that as crack cocaine.” (Tr. 351).
{¶37} Detective Hanlin also holds a certification in the identification of such
substances. (Tr. 352). And he has been identifying crack cocaine for eight years,
both in his cases and in other officers’ cases. (Tr. 352).
{¶38} At this point, the prosecutor asked that the court designate Detective
Hanlin as an expert in the identification of controlled substances. (Tr. 352-53).
Appellant objected. (Tr. 353). The court reserved ruling until after cross
examination.
{¶39} On cross examination, Detective Hanlin admitted that it is normal
procedure to have a seized substance tested in a laboratory after it is field-tested.
(Tr. 365). He admitted he is not a chemist. (Tr. 365). And Detective Hanlin testified
that it is possible for a field test or “presumptive” test to be found to be incorrect. (Tr.
366-67). However, he followed this statement up by stating that he had never had a
false positive with cocaine or crack cocaine during his thousands of tests. (Tr. 367).
{¶40} Based on the above, the trial court determined that Detective Hanlin
was qualified to testify as an expert in drug identification. (Tr. 415). It further
determined that Detective Hanlin could also testify as a lay witness on the subject.
(Tr. 415).
{¶41} The trial court did not abuse its discretion in designating Detective
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Hanlin as an expert in drug identification. There were many factors that the trial court
could have used to reach this conclusion. Detective Hanlin has eight years of
experience with drug cases, the bulk of which involved cocaine or crack cocaine. He
has attended numerous trainings in both visual drug identification and field testing.
He holds a certification in drug identification. He works with cocaine and crack
cocaine “almost on a daily basis” and identifying the drug has become “almost
second nature” to him. Given these factors, the trial court was within its discretion in
designating Detective Hanlin as an expert in drug identification.
{¶42} Furthermore, in State v. McKee (2001), 91 Ohio St.3d 292, at the
syllabus, the Ohio Supreme Court held:
{¶43} “The experience and knowledge of a drug user lay witness can
establish his or her competence to express an opinion on the identity of a controlled
substance if a foundation for this testimony is first established.”
{¶44} The Court made this holding in a case where it ultimately found that the
state did not establish a foundation for the lay witnesses’ opinion that the substance
in question was marijuana.
{¶45} One court has found that the Court’s holding in McKee is limited to
marijuana cases. State v. Adkinson, 8th Dist. No. 81329, 2003-Ohio-3322.
However, had the Court intended to limit its holding merely to marijuana cases,
presumably it would have stated so in its syllabus instead of holding that the witness
could express an opinion on the identity of a “controlled substance.”
{¶46} Furthermore, at least two other districts have applied McKee’s holding
to cases involving crack cocaine.
{¶47} In State v. Miles, 3d Dist. No. 4-02-28, 2003-Ohio-1370, the defendant
appealed his trafficking in crack cocaine convictions arguing in part that there was no
evidence as to the nature or amount of the substance alleged to be crack cocaine
because the state failed to provide either a lab analysis or expert testimony to prove
the identity and quantity of the drugs sold. The state argued that it could not provide
such evidence because the alleged drugs were smoked in their entirety. As proof
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that the substance in question was crack cocaine, the state offered the testimony of
Perez, an admitted crack addict. Perez testified that the defendant had supplied her
with crack in the past and based on her experience with crack and how it affected
her, the substance supplied by the defendant was crack. Citing McKee, the Third
District held that Perez’s testimony, along with other evidence, was sufficient
evidence that reasonable minds could have reached different conclusions as to
whether the substance in question was crack cocaine. Id. at ¶13.
{¶48} And in State v. Ross, 2d Dist. No. 19036, 2002-Ohio-6084, the
defendant appealed his drug trafficking conviction arguing in part that the state failed
to qualify a detective as an expert in the visual identification of crack cocaine. The
Second District disagreed. It cited to the detective’s qualifications, which included
that the detective had encountered crack cocaine thousands of times while working
as a drug detective, he was more than 95 percent accurate when visually identifying
crack cocaine, he was able to describe the appearance of crack, and he explained
why he believed the substance in question was crack. Id. at ¶14. Based on the
above, the court found that the detective was qualified to render an expert opinion as
to the identity of the substance at issue. Id. Quoting United States v. Brown (8th Cir.
1998), 156 F.3d 813, 816, the court observed, “[s]uch testimony is admissible
because crack cocaine ‘usually has a distinctive appearance and form’ that makes it
easily recognizable to a person who is experienced with the drug.” Id.¶14, fn. 1. And
in another footnote, the court questioned whether it was even necessary for the trial
court to qualify the detective as an expert, since the McKee Court had approved the
use of lay witness testimony to establish the identity of a suspected controlled
substance. Id. at fn. 2.
{¶49} Based on the above, the trial court did not err in finding Detective
Hanlin qualified as an expert in drug identification who could give his opinion that the
seized substance was crack cocaine.
{¶50} Accordingly, appellant’s first assignment of error is without merit.
{¶51} Appellant’s second assignment of error states:
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{¶52} “THE TRIAL COURT ERRED BY FAILING TO MERGE APPELLANT’S
CONVICTIONS AND SENTENCES FOR TWO COUNTS OF HAVING A WEAPON
UNDER DISABILITY WHEN THE CONVICTIONS RESULTED FROM THE SAME
TRANSACTION.”
{¶53} Here appellant first argues that because both weapons he was found to
have possessed were part of the same incident, the state failed to prove a separate
animus for each one and, therefore, he should have only been convicted of one
count of possessing weapons under a disability. Alternatively, appellant argues that
even if the possession of each weapon constituted a separate offense, the offenses
would be allied offenses of similar import and the trial court should have merged
them for sentencing.
{¶54} Appellant did not specifically argue merger during his sentencing
hearing. However, his counsel argued that the court had to run appellant’s
sentences concurrently “because of the fact it’s all at once and the facts are that it
was all at once.” (Sentencing Tr. 10). Whether this argument preserved the issue of
merger for appeal is arguable.
{¶55} But even if counsel did not properly preserve the merger issue for
appeal, we may nonetheless review this argument for plain error. Plain error is one
in which but for the error, the outcome of the trial would have been different. State v.
Long (1978), 53 Ohio St.2d 91, 97. “Because an error related to merger affects a
defendant's right to protection from double jeopardy, and because an erroneous
failure to merge convictions inevitably causes a different outcome in a defendant's
trial, the failure to merge convictions on allied offenses of similar import will almost
always result in plain error.” State v. Haslam, 7th Dist. No. 08-MO-3, 2009-Ohio-
1663, at ¶62. Thus, if the court here failed to properly merge appellant’s convictions,
the result is plain error.
{¶56} In support of his argument, appellant relies on State v. Thompson
(1988), 46 Ohio App.3d 157. The facts of that case are remarkably similar to the
facts here. In Thompson, police responded to a domestic complaint. The appellant
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answered the door. The appellant complied with the officers’ request to remove his
hands from his pockets and in so doing, reached around and removed a gun from his
pocket and dropped it on the floor. Upon a search of the residence, officers also
found another gun on a table approximately eight to ten feet away from where the
appellant was standing. The appellant was later convicted of two counts of having a
weapon under disability.
{¶57} The appellant appealed arguing in part that the two counts of having a
weapon under disability were allied offenses of similar import and, therefore, the
court erred in imposing separate convictions and multiple sentences for them. The
Ninth District agreed citing a previous case:
{¶58} “In State v. Sharpe (May 28, 1980), Summit App. Nos. 9500 and 9529,
unreported, we addressed this precise point of law. In Sharpe we held that the
simultaneous possession of weapons by one under disability is but one offense. Also,
we held that, assuming arguendo that possession of each weapon constituted a
separate offense, the offenses would be allied offenses of similar import pursuant to
R.C. 2941.25(A) and as such the defendant could be convicted of but one offense.”
Id.
{¶59} Other courts have reached similar conclusions on this issue. See State
v. Pitts (Nov. 6, 2000), 4th Dist. No. 99-CA-2675 (Where defendant was convicted of
seven counts of having a weapon under disability for seven handguns all found in a
purse, “the simultaneous, undifferentiated possession of weapons by a person under
a disability constitutes only one offense and not separate offenses for each
weapon.”); State v. Israel (July 22, 1992), 9th Dist. No. 15487 (Trial court should
have merged defendant’s two convictions for carrying a concealed weapon where
one weapon was concealed in defendant’s ankle holster and the other was
concealed in the seat of his automobile.); State v. Woods (1983), 8 Ohio App.3d 56
(“When a defendant conceals several weapons in one location at one time, his
conduct is essentially one continuous, indivisible act,” and therefore the trial court
should have merged the defendant’s convictions for three separate counts of carrying
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concealed weapons.)
{¶60} The case at bar bears many similarities to the above cited cases.
Appellant was convicted on two counts involving two guns. Appellant’s guns were
located very near each other, but not in the exact same location. And appellant
“possessed” the guns at the same time.
{¶61} R.C. 2941.25 addresses the issue of merger and provides:
{¶62} “(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be convicted of only
one.
{¶63} “(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the defendant
may be convicted of all of them.”
{¶64} This statute requires a two-part analysis. First, the court must
determine whether the elements of the two offenses, when considered in the
abstract, correspond in such a way that the commission of one necessarily results in
the commission of the other. State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625,
at ¶27. Second, the court must determine whether the defendant committed one of
the offenses with a separate animus than the other or whether he acted with only one
animus. Id. at ¶31.
{¶65} Appellant’s two convictions are both for violations of R.C.
2923.13(A)(3). Thus, their elements are identical in the abstract. Further, appellant’s
conduct in the commission of both offenses indicates a single animus. According to
Detective Hanlin, one firearm was located under the couch cushion where appellant
was sitting and the other was found between the couch’s backrest and cushion
where appellant was seen to have placed his hand when he sat down. (Tr. 332-33).
And according to Young, appellant possessed both weapons earlier that day and had
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them both in his pants. (Tr. 191-93).
{¶66} Based on the above, the trial court should have merged appellant’s two
weapons counts. Both the case law and the statutory test support this conclusion.
Accordingly, appellant’s second assignment of error has merit.
{¶67} Appellant’s third assignment of error states:
{¶68} “THE TRIAL COURT ERRED IN ADMITTING EVIDENCE IN
VIOLATION OF EVIDENCE RULE 403(A).”
{¶69} Detective Hanlin testified he had learned that drugs were being sold
from Young’s house. (Tr. 303). Consequently, he met with a confidential informant
(CI) and set up a controlled crack cocaine buy from Young for November 13, 2008.
(Tr. 303-305). Detective Hanlin stated that the CI went to Young’s house and
encountered a man named Jarvis in the kitchen who was cooking crack cocaine. (Tr.
308). He stated that the CI went outside to wait for Young. (Tr. 309). When Young
arrived, the CI was able to purchase crack cocaine from her. (Tr. 309-310).
Detective Hanlin stated that another detective then used this information to secure a
search warrant for Young’s house. (Tr. 310). He admitted that appellant was not
part of this investigation until officers found him in Young’s house when they
executed the warrant. (Tr. 381).
{¶70} Appellant contends that the trial court should not have permitted
Detective Hanlin’s testimony regarding the arranged drug buy that the CI made from
Young. He points out that the arranged buy had nothing to do with him. He argues
that this testimony had very little probative value, likely caused him unfair prejudice,
and was misleading to the jury.
{¶71} Prior to trial, appellant made a motion in limine, arguing in part that the
state should be prohibited from presenting testimony regarding the controlled drug
buy from Young. (Tr. 8-9). The trial court stated that the officers would be able to
testify as to why they did what they did, subject to objection by appellant. (Tr. 12).
{¶72} But when Detective Hanlin testified regarding the controlled drug buy
and the CI, appellant never objected. The denial of a motion in limine does not
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preserve an alleged error for review if the party fails to renew his or her objection
during trial. State v. Hill (1996), 75 Ohio St.3d 195, 202-203. Appellant failed to
preserve this issue for our review by failing to object to the testimony during trial.
Consequently, we can only conduct a plain error review of this issue. Also, this could
very well have been trial strategy on behalf of appellant’s trial counsel.
{¶73} As will be seen in the discussion of appellant’s fourth assignment of
error, given the evidence that exists to support appellant’s convictions, whether or not
the jury heard the testimony regarding the CI and the controlled drug buy from Young
likely would have had no impact on its determination as to appellant’s guilt. Thus,
there is no plain error.
{¶74} Accordingly, appellant’s third assignment of error is without merit.
{¶75} Appellant’s fourth assignment of error states:
{¶76} “THE TRIAL COURT’S FINDING OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
{¶77} Appellant contends here that his convictions are both unsupported by
sufficient evidence and are against the manifest weight of the evidence. He offers
one argument in support of both contentions. Appellant argues that Young’s
testimony was not credible. He points out that his fingerprints were not on either gun
and Detective Hanlin did not see him with any guns or drugs in his hand. In sum,
appellant asserts that the only witness to testify that he exercised control over the
guns and drugs was Young who is a convicted drug trafficker and who admitted to
using and selling crack on the day in question.
{¶78} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith (1997), 80 Ohio St.3d 89, 113. In
essence, sufficiency is a test of adequacy. State v. Thompkins (1997), 78 Ohio St.3d
380, 386. Whether the evidence is legally sufficient to sustain a verdict is a question
of law. Id. In reviewing the record for sufficiency, the relevant inquiry is whether,
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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. Smith, 80 Ohio St.3d at 113.
{¶79} Appellant was convicted of two counts of having a weapon under
disability in violation of R.C. 2923.13(A)(3), which states:
{¶80} “(A) Unless relieved from disability as provided in section 2923.14 of the
Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or
dangerous ordnance, if any of the following apply:
{¶81} “* * *
{¶82} “(3) The person is under indictment for or has been convicted of any
offense involving the illegal possession, use, sale, administration, distribution, or
trafficking in any drug of abuse or has been adjudicated a delinquent child for the
commission of an offense that, if committed by an adult, would have been an offense
involving the illegal possession, use, sale, administration, distribution, or trafficking in
any drug of abuse.”
{¶83} In order to “have” a firearm within the meaning of R.C. 2923.13, the
defendant must actually or constructively possess the weapon. State v. Simpson, 7th
Dist No. 01-CO-13, 2002-Ohio-1565, at ¶52. Actual possession of the weapon simply
requires physical control or ownership at some point in time. Haslam, 7th Dist. No.
08-MO-3, at ¶41.
{¶84} Additionally, appellant was convicted of possession of drugs in violation
of 2925.11(A)(C)(4)(a), which provides:
{¶85} “(A) No person shall knowingly obtain, possess, or use a controlled
substance.
{¶86} “* * *
{¶87} “(C) Whoever violates division (A) of this section is guilty of one of the
following:
{¶88} “* * *
{¶89} “(4) If the drug involved in the violation is cocaine or a compound,
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mixture, preparation, or substance containing cocaine, whoever violates division (A)
of this section is guilty of possession of cocaine. The penalty for the offense shall be
determined as follows:
{¶90} “(a) Except as otherwise provided * * * possession of cocaine is a felony
of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender.”
{¶91} We must consider the evidence to determine whether it sufficiently
supports appellant’s convictions.
{¶92} Young was the first witness to testify. Young admitted that she was in
prison for 12 months on drug trafficking and possession charges that resulted from
the search of her home and the controlled drug buy. (Tr. 181, 200). She also
admitted to a prior possession of crack cocaine conviction. (Tr. 200). And she
admitted that she used cocaine for six months and sold it to support her habit. (Tr.
199). Young further testified that on November 13, 2008, she sold crack cocaine
from the alley behind her house. (Tr. 198).
{¶93} As to the search of her home, Young testified that on November 13, she
was at home with appellant, her brother Darnell Young, and her cousin Michael
Curenton. (Tr. 185-86). She stated that her brother opened the door and yelled,
“Police.” (Tr. 186). According to Young, the police entered her house through the
kitchen, went into the dining room, and then into the living room where everyone was
located. (Tr. 186-87). Upon the officers’ orders, Young, Darnell, and Curenton got
onto the ground. (Tr. 187-89). At the time, appellant was sitting on the couch. (Tr.
188). Neither Darnell nor Curenton was near appellant. (Tr. 189).
{¶94} Young testified that earlier that day she saw appellant with two guns in
his pants pocket while he was at her house. (Tr. 191-93). She stated that as the
police were coming through her door, she saw appellant put one gun, which she
described as the black gun, under the couch cushion. (Tr. 193-94). Young testified
that she then saw appellant put the other gun, which she described as the silver gun,
on the side of the couch cushion. (Tr. 194). Young identified the guns seized from
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the couch as the guns she saw appellant with. (Tr. 195-96). Additionally, Young
testified that the guns did not belong to her. (Tr. 202).
{¶95} Young also testified that she saw appellant with crack cocaine on the
day in question. (Tr. 196). She stated that the crack was “tied up,” meaning it was in
single little baggies. (Tr. 196). The prosecutor showed Young the alleged crack
cocaine with which appellant was charged with possessing. (State Ex. 6). She
stated that this was the type of crack cocaine appellant had on the day in question.
(Tr. 204). Young then testified, as a person who has used crack cocaine, that the
substance in State’s Exhibit 6 appeared to be crack cocaine. (Tr. 205).
{¶96} Young testified that she did not receive any kind of consideration or
promises from the state in exchange for testifying against appellant. (Tr. 202). On
cross examination, however, Young admitted that she had been facing a potential
three-year sentence and only received one year. (Tr. 209).
{¶97} Officer Jeffrey Kamerer, who was part of the search warrant team, was
the next witness. Officer Kamerer testified that as the team entered Young’s house,
Detective Hanlin ordered appellant to the ground, but appellant refused to cooperate.
(Tr. 232). He stated that appellant was standing by the edge of the couch and then
sat down. (Tr. 232). He stated that no one else was near appellant. (Tr. 234).
{¶98} Officer Kamerer testified that once all of the occupants were handcuffed
and removed from the house, he searched the living room with Detective Hanlin. (Tr.
235). He stated that he lifted up the couch cushions and found the Taurus handgun.
(Tr. 236). He further stated that he found five individually-wrapped baggies of crack
along with the Raven Arms revolver shoved down inside the couch. (Tr. 236-38).
{¶99} On cross examination, Officer Kamerer testified that he was once
involved with a case where he charged an individual with having crack cocaine and
the substance turned out to be chemically different from crack cocaine. (Tr. 246). He
stated that it took testing by BCI to determine that the substance was not crack
cocaine. (Tr. 246-47).
{¶100} Detective Hanlin also testified regarding the search of Young’s house.
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He began his testimony by explaining how the search came to be and the controlled
drug buy with the CI as detailed in assignment of error number three.
{¶101} Detective Hanlin next testified about the execution of the warrant. He
stated that when he first saw appellant, appellant was standing directly in front of the
couch as if he had just stood up. (Tr. 322). Detective Hanlin stated that he ordered
appellant to the ground, but appellant refused to comply. (Tr. 323). Instead,
appellant fell backwards onto the couch and at the same time stuck his hand down in
between the cushions and the back of the couch. (Tr. 323). Detective Hanlin then
ordered appellant to show his hands. (Tr. 323). Appellant refused to do so and kept
his hand down in the couch. (Tr. 323). Detective Hanlin then ordered appellant to
get on his stomach, and appellant eventually complied. (Tr. 324). Detective Hanlin
handcuffed appellant and he was taken outside. (Tr. 324).
{¶102} Detective Hanlin stated that once all of the occupants of the house
were taken outside, the police began their search. (Tr. 325). He stated that Officer
Kamerer lifted the couch cushions where appellant had been sitting and found crack
cocaine, a black Magnum, and a .25 Raven. (Tr. 331-32, 336). He also stated that
additional crack cocaine was found behind the couch and somewhat underneath it,
as if it had fallen between the couch’s springs and backrest. (Tr. 332). In total, there
were ten packages of crack cocaine. (Tr. 333). Detective Hanlin testified that the
Raven was found in the exact location where appellant had stuck his hand in the
couch. (Tr. 332-33). Additionally, he stated that no one else was near the couch
where the drugs and guns were found. (Tr. 392).
{¶103} As to the two guns, Detective Hanlin stated that they were loaded
when they were found in the couch. (Tr. 344). Later, Detective Hanlin test fired them
and found them both operational. (Tr. 346).
{¶104} Detective Hanlin testified that a gun case was found in Young’s
bedroom. (Tr. 369). But he stated that the gun case was nowhere near where the
guns were found. (Tr. 389-90). Detective Hanlin also testified that there was no
physical evidence linking appellant to the guns. (Tr. 372).
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{¶105} Detective Hanlin also testified regarding appellant’s criminal history.
He identified the sentencing entry whereby appellant was previously convicted of
possession of cocaine, a fifth-degree felony, and possession of crack cocaine, a
fourth-degree felony. (Tr. 349-50).
{¶106} Next, Detective Hanlin testified regarding the crack cocaine that was
found. As discussed in detail above, Detective Hanlin first testified about his
experience in identifying crack cocaine. He stated that based on his experience, he
was able to visually identify the seized substance as crack cocaine. (Tr. 351). He
then testified that he performed the “color indication” test twice, on the night in
question and on the day of trial in preparation for his testimony. (Tr. 353). Detective
Hanlin testified that on both tests, he got a positive result indicating that the seized
substance was crack cocaine. (Tr. 354, 355). He stated that in eight years of testing
cocaine on an almost daily basis, he never received a false positive for cocaine or
crack cocaine. (Tr. 354). However, he did have one false positive where a
prescription medication tested positive for methamphetamine. (Tr. 354).
{¶107} Finally, Detective Hanlin testified regarding a letter he received from
appellant. In the letter, appellant stated that he was writing in the hopes of being
released from jail in order to attend his daughter’s birthday party. (Tr. 360).
Appellant further stated in the letter, “if you can help me * * * *, I know for a fact I can
help you.” (Tr. 360). Appellant also stated in the letter that he wanted to work for
Detective Hanlin in “bringing the whole city down.” (Tr. 360).
{¶108} First, we will address appellant’s possession of drugs conviction.
{¶109} In order to convict appellant of possession of drugs, the state had to
prove that appellant (1) knowingly (2) obtained, possessed, or used (3) crack
cocaine.
{¶110} The evidence supports appellant’s conviction. Young testified that
she saw appellant with crack cocaine at her house on the day in question. And
Detective Hanlin stated the crack cocaine was found with the guns under the couch
cushions where appellant had been seated and also under the couch as if it had
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fallen through. Furthermore, Detective Hanlin expressed his expert opinion that the
substance in question was crack cocaine and Young expressed her opinion, as a lay
witness who was very familiar with crack cocaine, that the substance in question was
crack cocaine.
{¶111} Next, we must examine appellant’s convictions for having a weapon
under disability. Here the state had to prove that appellant (1) knowingly (2)
acquired, had, carried, or used a firearm and that (3) appellant had a prior conviction
involving the illegal possession of a drug of abuse.
{¶112} The evidence as to both counts is substantially similar and is sufficient
to support appellant’s convictions.
{¶113} Young testified that she saw appellant with both guns in his pants
pocket at her house on the day in question. She further stated that as the police
entered her house, she witnessed appellant hide one of the guns under the couch
cushion. And she stated that once the police entered her living room, she saw
appellant hide the other gun in her couch. Furthermore, Detective Hanlin testified
that he saw appellant shove his hand between the couch’s backrest and cushion. He
further testified that the spot where appellant’s hand went into the couch is where he
later located one of the guns. And he testified that he located the other gun under
the cushion where appellant sat down. Finally, Detective Hanlin testified that
appellant has a prior felony conviction for possession of cocaine and a prior felony
conviction for possession of crack cocaine.
{¶114} Construing the evidence in the light most favorable to the prosecution,
as we are required to do, it is clear that appellant knowingly possessed both guns
while under a disability.
{¶115} Next, we will address appellant’s manifest weight argument.
{¶116} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest miscarriage
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of justice that the conviction must be reversed and a new trial ordered. Thompkins,
78 Ohio St.3d at 387. “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.’” Id. (Emphasis sic.) In making its determination, a reviewing court is
not required to view the evidence in a light most favorable to the prosecution but may
consider and weigh all of the evidence produced at trial. Id. at 390.
{¶117} Still, determinations of witness credibility, conflicting testimony, and
evidence weight are primarily for the trier of the facts. State v. DeHass (1967), 10
Ohio St.2d 230, paragraph one of the syllabus.
{¶118} In considering a manifest weight argument, we must also consider the
testimony of appellant’s witness, Detective Thomas Ellis. Detective Ellis prepared
the affidavit for the search warrant and was a member of the search warrant team.
He testified that there was no mention of appellant in the search warrant. (Tr. 419).
Further, Detective Ellis stated that no one had given him any evidence of appellant
being present in Young’s home during the previous controlled drug buy. (Tr. 419-20).
{¶119} Appellant argues that Young’s testimony was not credible given that
she is a convicted drug trafficker and admitted crack cocaine user. He asserts that
she was the only one who allegedly saw him with the guns and drugs.
{¶120} Appellant is correct as to Young’s credentials, she admitted to both
selling and using crack cocaine. However, these facts were things for the jury to
consider when weighing Young’s credibility. Although an appellate court is permitted
to independently weigh the credibility of the witnesses when determining whether a
conviction is against the manifest weight of the evidence, great deference must be
given to the fact finders’ determination of witnesses' credibility. State v. Wright, 10th
Dist. No. 03AP-470, 2004-Ohio-677, at ¶11. The policy underlying this presumption
is that the trier of fact is in the best position to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing
the credibility of the proffered testimony. Id.
{¶121} Furthermore, although Detective Hanlin did not actually see appellant
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holding the guns or the crack, his testimony gave circumstantial evidence that
appellant possessed them. Detective Hanlin testified that when he spotted appellant
it appeared as though appellant had just stood up from the couch. He stated that
even though he ordered appellant to the ground and to show his hands, appellant did
not initially comply. Instead, appellant fell back on the couch and shoved his hand
between the cushions. One of the guns was found in the exact location where
appellant had put his hand. And the other gun and half of the crack were found
under the cushion where appellant had been seated. The remaining crack was found
under the couch as if it had fallen through. Hence, even though Detective Hanlin did
not see appellant holding any of the items in question, from his testimony the jury
could have concluded that appellant possessed them and hid them in the couch.
{¶122} Appellant also argues that no physical evidence linked him to the
guns or drugs. But there is no requirement that the state must use physical evidence
to link appellant to these items. The testimony of Young and Detective Hanlin was
enough so that the jury could reasonably conclude that appellant possessed both the
guns and the drugs.
{¶123} Finally, the state admitted that appellant was not initially a suspect in
the search warrant aimed at Young’s house. However, once the police entered
Young’s house, saw appellant, and located the drugs and guns that appeared to be
in his possession, appellant then became a suspect. The fact that police did not
initially suspect appellant was involved in any drug activity at Young’s house does not
contradict what they found when they searched the house.
{¶124} Based on the above the jury’s verdict was not against the manifest
weight of the evidence.
{¶125} Accordingly, appellant’s fourth assignment of error is without merit.
{¶126} For the reasons stated above, appellant’s conviction for drug
possession is affirmed. Appellant’s convictions for having a weapon under disability
are reversed. The case is remanded to the trial court for a new sentencing hearing at
which the state must elect which allied offense it will pursue against appellant. Also
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on remand, the trial court shall merge the two weapons offenses for purposes of
sentencing. The determination of appellant’s guilt for committing allied offenses
remains intact per State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, at ¶27.
Vukovich, P.J., concurs.
DeGenaro, J., concurs.