State v. Williams

[Cite as State v. Williams, 

.]



                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO



 STATE OF OHIO,                                :   APPEAL NO. C-230145
                                                   TRIAL NO. B-2105645
           Plaintiff-Appellee,
                                               :
     vs.
                                               :
 RUDY WILLIAMS,                                        O P I N I O N.

           Defendant-Appellant.                :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 22, 2023


Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS


BOCK, Judge.

       {¶1}    Defendant-appellant Rudy Williams appeals his conviction for

trafficking in marijuana. According to Williams, there is no evidence that he possessed

the marijuana that officers recovered from an SUV. We hold that the state established

Williams’s constructive possession of the marijuana where evidence showed that

officers found items consistent with drug trafficking on Williams’s person and a large

quantity of marijuana inside the vehicle driven by Williams, which was readily

accessible from the driver’s seat.

       {¶2}   Williams also argues that a review of the record demonstrates that his

sentence is inconsistent with the principles and purposes of felony sentencing. But we

lack authority under R.C. 2953.08(G)(2)(a) to review whether his sentence comports

with R.C. 2929.11 and 2929.12. Therefore, we affirm Williams’s conviction.

                              I. Facts and Procedure

       {¶3}    The state charged Williams with trafficking between 200 to 1,000

grams of marijuana in the vicinity of a school or juvenile in violation of R.C.

2925.03(A)(2), and possessing between 200 to 1,000 grams of marijuana in violation

of R.C. 2925.11(A).

       {¶4}    At trial,   Hamilton County Probation         Department     electronic-

monitoring-unit (“EMU”) employee Nick Minnich explained that he was assigned to

supervise Williams, who was “out on bond on another charge.” Minnich testified that

he and other officers visited Williams’s residence in August 2021. Officers watched as

Williams parked an SUV in the driveway. The officers’ search of the SUV returned two

bags of marijuana from the rear floorboard and a digital scale. The parties stipulated

that the two bags held 448 and 201.5 grams of marijuana.


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                   OHIO FIRST DISTRICT COURT OF APPEALS


       {¶5}   In addition to the SUV, officers noticed a Mercedes, which was

registered to Williams’s employer. Officers searched the Mercedes and recovered an

additional bag of plant material believed to be marijuana. When officers searched

Williams, they seized from him approximately $800 in cash in small denominations

and two cell phones. A Hamilton County Crime Laboratory Report revealed that 2 of

the 12 specimens of plant material from the scene tested positive for marijuana.

       {¶6}   The jury found Williams guilty of both possessing and trafficking in

marijuana. Following his sentencing hearing, the trial court imposed a 12-month term

of incarceration for marijuana trafficking and merged the marijuana-possession count

into the trafficking count. The trial court ordered that 12-month sentence to run

consecutively to his sentences “IN CASES B-2100707, B-2106556, AND B-2205500.”

       {¶7}   Williams appeals in three assignments of error.

                              II. Law and Analysis

                                Standard of Review

       {¶8}   Williams argues his first two assignments of error together, asserting

that there was insufficient evidence supporting his conviction and that his conviction

was contrary to the manifest weight of the evidence. Williams concedes that the police

recovered marijuana from the SUV he was driving. But he claims that the state failed

to prove that he possessed the marijuana.

       {¶9}   A sufficiency challenge requires a review of “ ‘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.’ ” State v. Marshall, 

, 

, 

 (2d Dist.), quoting State v. Jenks,

, 

 (1991), paragraph two of the syllabus. To reverse a

conviction for insufficient evidence, we must view “the evidence in a light most
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                    OHIO FIRST DISTRICT COURT OF APPEALS


favorable to the prosecution and find that no rational trier of fact could have found the

essential elements of the offense proven beyond a reasonable doubt.” Jenks at

paragraph two of the syllabus.

       {¶10} A manifest-weight challenge tests “the credibility of the evidence

presented.” State v. Thomas, 1st Dist. Hamilton No. C-020282, 

.

To reverse a conviction as against the manifest weight of the evidence, we must review

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

of the witnesses, resolve any evidentiary conflicts, and conclude that 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.” Id. at ¶ 7.

   The evidence established Williams’s constructive possession of the marijuana

       {¶11} R.C. 2925.11(A) criminalizes possession of drugs: “No person shall

knowingly obtain, possess, or use a controlled substance or a controlled substance

analog.” Marijuana trafficking is prohibited by R.C. 2925.03(A)(3), which provides

that “[n]o person shall knowingly * * * prepare for shipment, ship, transport, deliver,

prepare for distribution, or distribute a controlled substance or controlled substance

analog, when the offender knows or has reasonable cause to believe that the controlled

substance or a controlled substance analog is intended for sale or resale by the offender

or another person.” To prove drug trafficking, the state must also show that the

offender possessed the drugs because “[p]ossession is a ‘requisite element’ of drug

trafficking under R.C. 2925.03(A)(2).” State v. Arrington, 

,

 (8th Dist.1990).

       {¶12} Under R.C. 2925.01(K), possession “means having control over a thing

or a 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
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                   OHIO FIRST DISTRICT COURT OF APPEALS


substance is found.” A defendant’s possession of an object may be actual or

constructive. Thomas at ¶ 9. Absent a defendant’s admission, possession is often

established by circumstantial evidence. State v. Hankerson, 

, 

 (1982). And possession must be determined “from all the attendant facts

and circumstances available.” State v. Teamer, 

, 

 (1998).

       {¶13} At issue here is whether the evidence established that Williams

constructively possessed the marijuana. To establish constructive possession, there

must be evidence of a defendant’s “knowledge of an illegal substance or goods and the

ability to exercise dominion or control over the substance or the premises on which

the substance is found.” State v. Harris, 8th Dist. Cuyahoga Nos. 98183 and 98184,

. Further, “ownership need not be proven to establish constructive

possession.” State v. Curry, 2d Dist. Montgomery No. 25384, 

,

citing State v. Fry, 9th Dist. Summit No. 23211, 

.

       {¶14} While a defendant’s mere presence alone will not establish constructive

possession, a defendant’s “proximity to the object may constitute some evidence of

constructive possession.” State v. Kingsland, 

, 

,

 (4th Dist.). Presence, “coupled with another factor or factors

probative of dominion or control over the contraband, may establish constructive

possession.” Id.; see State v. Devaughn, 1st Dist. Hamilton No. C-180586, 2020-Ohio-

651, ¶ 33.

       {¶15} For instance, a driver’s knowledge of controlled substances in a vehicle

may be inferred “where police recovered drugs from the floor behind the driver’s seat.”

Thomas, 1st Dist. Hamilton No. C-020282, 

; see State v.

Trembly, 

, 

 (8th Dist.2000) (“the crack cocaine
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                    OHIO FIRST DISTRICT COURT OF APPEALS


and the crack pipe with cocaine residue were within arms length of defendant-

appellant at the time of the search of defendant-appellant’s vehicle”). Possessing “keys

to the automobile is a strong indication of control over the automobile.” State v. Fry,

4th Dist. Jackson No. 03CA26, 

; see State v. Reed, 6th Dist. Erie

No. E-17-038, 

.

       {¶16} EMU officers watched Williams, who was the only person in the vehicle,

park and exit from the SUV. Minnich testified that Williams had been ticketed twice

while behind the wheel of that SUV. After Williams exited from the SUV, they searched

the vehicle and recovered a digital scale, a small bag of marijuana, and “two bags of

marijuana on the backseat floor within arm’s reach of the driver’s side.” Williams

stipulated that those bags held a total of 649.5 grams of marijuana. EMU officers

searched Williams and recovered two cell phones and $800 in small denominations.

Minnich, drawing on his training and experience, explained that digital scales are used

to “measure out narcotics,” and that both multiple cell phones and large amounts of

currency in small denominations are indicative of drug trafficking.

       {¶17} Williams’s repeated use of the car establishes his dominion and control

over the vehicle where the marijuana was discovered. The jury could reasonably infer

Williams’s awareness of the marijuana’s presence. First, the marijuana was easily

accessible by Williams as he drove the SUV. Second, the jury could infer Williams’s

awareness of the marijuana based on his carrying multiple cell phones and a large

quantity of cash in small denominations, which are consistent with drug trafficking.

       {¶18} Williams emphasizes the absence of any cell phone data or DNA test

results connecting him to the marijuana to argue that we should vacate or reverse his

conviction, relying on our opinion in Devaughn, 1st Dist. Hamilton No. C-180586,

. In Devaughn, the state failed to establish Darris Devaughn’s
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                    OHIO FIRST DISTRICT COURT OF APPEALS


constructive possession of drugs in the center console of a parked car into which

officers observed him leaning because the evidence established Devaughn’s proximity

to the drugs and nothing else:

        In this case, the car where the drugs were found was not registered to

        Devaughn. There was no testimony that he had ever driven the car or

        possessed the keys to the car. The officers who saw Devaughn lean into

        the car did not testify, so the record contains no evidence regarding how

        far he leaned into the car, how long he leaned into the car, or whether

        he made any furtive movements while leaning into the car. The state did

        not present any DNA or fingerprint evidence connecting him to the

        center console where the drugs were found or connecting him to the

        drugs and scale that were found in the console. Finally, the state did not

        present any evidence that Devaughn placed any items into the car or

        removed any items from the car.

Id. at ¶ 35.

        {¶19} But the evidence in Devaughn is readily distinguishable from the

evidence in this case. Williams drove the SUV several times, the marijuana sat on the

rear floorboard within an arm’s reach of the driver’s seat, and officers found evidence

of drug trafficking on Williams’s person. Thus, unlike in Devaughn, forensic testing is

not critical to establish Williams’s constructive possession of the marijuana.

        {¶20} In sum, the readily-accessible marijuana near the driver’s seat in the

SUV driven by Williams combined with other evidence of drug-related activity found

on Williams’s person established his constructive possession over the marijuana. And

following an independent review of the record, we hold that Williams’s conviction is


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                    OHIO FIRST DISTRICT COURT OF APPEALS


consistent with the manifest weight of the evidence. We overrule the first and second

assignments of error.

                 Williams’s sentence was within the statutory range

       {¶21} In his third assignment of error, Williams maintains that the trial court

erred by imposing a 12-month sentence, because, as he argues, the record does not

support the trial court’s findings. In Williams’s view, a review of the record under R.C.

2953.08(G)(2)(a) establishes that a 9-month sentence “would have more properly

served the principles and purposes of sentencing than 12 months.” Williams concedes

that his sentence is within the lawful range under R.C. 2929.14(A)(3)(b) and therefore

is not contrary to law. And Williams acknowledges that the trial court made the

requisite findings to impose consecutive sentences under R.C. 2929.14(C)(4).

       {¶22} R.C. 2929.11 outlines the “overriding purposes of felony sentencing,”

and R.C. 2929.12 identifies a list of factors that the trial court must consider when

imposing a sentence under R.C. 2929.11. The problem with Williams’s argument is

that it runs headlong into Ohio Supreme Court precedent, which instructs, “R.C.

2953.08(G)(2) does not permit an appellate court to conduct a freestanding inquiry”

into a felony sentence as it relates to the principles and purposes of felony sentencing

under R.C. 2929.11 and 2929.12. State v. Jones, 

, 

,

.

       {¶23} Under R.C. 2953.08(G)(2)(a), appellate courts have the power to

increase, reduce, modify, or vacate a sentence if clear and convincing evidence

demonstrates “[t]hat the record does not support the sentencing court’s findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section

2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is

relevant.” The statute “ ‘clearly does not provide a basis for an appellate court to
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                      OHIO FIRST DISTRICT COURT OF APPEALS


modify or vacate a sentence if it concludes that the record does not support the

sentence under R.C. 2929.11 and 2929.12 because [those statutes] are not among the

statutes listed in [R.C. 2953.08(G)(2)(a)].’ ” State v. Harris, 1st Dist. Hamilton No. C-

220584, 

, quoting 

.

       {¶24} Williams does not argue that the trial court failed to consider the

purposes and principles of felony sentencing under R.C. 2929.11 and 2929.12. Nor

does he argue that the trial court considered impermissible factors when imposing his

sentence. See State v. Bryant, 

, 

, 

. Therefore, we overrule his third assignment of error.

                                     III. Conclusion

       {¶25} We overrule Williams’s three assignments of error and affirm his

conviction.

                                                                      Judgment affirmed.

ZAYAS, P.J., and KINSLEY, J., concur.

Please note:

               The court has recorded its entry on the date of the release of this opinion.




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