State v. Rainey

[Cite as State v. Rainey, 

.]




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




 STATE OF OHIO,                              :   APPEAL NO. C-230055
                                                 TRIAL NO. B-2100811-B
           Plaintiff-Appellee,               :

     vs.                                     :
                                                      O P I N I O N.
 MELOGRO RAINEY,                             :

           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,

Arenstein & Gallagher, Hal Arenstein and Elizabeth Conkin, for Defendant-
Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS



BOCK, Judge.

       {¶1}    For about a year, based on community complaints about drug activity,

police had been investigating a building in Cincinnati, as well as those entering and

leaving the building. Defendant-appellant Melogro Rainey was one of the people

entering and leaving the building.

       {¶2}    Eventually, police arrested Rainey on multiple drug- and gun-related

charges. Following a jury trial, Rainey was convicted of drug trafficking and possession

of drugs. Rainey appeals, asserting that the trial court misstated the law in its

constructive-possession jury instruction, he received the ineffective assistance of

counsel, and his convictions were not supported by sufficient evidence and were

contrary to the manifest weight of the evidence.

       {¶3}    We hold that (1) the jury instructions were in accordance with Ohio law,

(2) it is not apparent that counsel’s performance fell below the standard of reasonable

legal assistance, and (3) Rainey’s convictions were supported by sufficient evidence

and the jury did not lose its way or create a manifest injustice in finding Rainey guilty.

Therefore, we affirm the trial court’s judgment.

                            I.       Facts and Procedure

       A. The state indicted Rainey on multiple drug-related charges

       {¶4}    In February 2021, the state indicted Rainey, along with codefendant

Kendall Tye, on five counts of drug trafficking in violation of R.C. 2925.03(A)(2), five

counts of drug possession in violation of R.C. 2925.11(A), and having a weapon while

under a disability (“WUD”) in violation of R.C. 2923.13(A)(3). Counts one and two

included major-drug-offender specifications. Counts five and six also included major-

drug-offender specifications, and the drug involved was a fentanyl-related compound.

                                            2
                    OHIO FIRST DISTRICT COURT OF APPEALS



               1. The Trial

       {¶5}    Rainey was tried by a jury on all charges other than the WUD, on which

he waived his right to a jury trial. After a bench trial, the trial court acquitted Rainey

of the WUD charge.

                 Officers conducted multiple traffic stops on Rainey

       {¶6}    Cincinnati Police Officer Tom Weigand testified that Cincinnati police

had received complaints from the community about drug transactions taking place at

1842 Baltimore Avenue (“the Baltimore property”) in Cincinnati, Ohio. In response,

police officers began surveilling the Baltimore property. Over the course of about a

year, Weigand and other officers observed Rainey and two other people going into and

leaving the Baltimore property, using a key to enter.

       {¶7}    In January 2020, Cincinnati Police Officer Cian McGrath made a traffic

stop on Rainey on Baltimore Avenue at the request of a plain-clothes officer

conducting surveillance in the area. While Rainey received a citation, the sole purpose

of the stop was to identify him. McGrath found no contraband. Rainey’s driver’s

license showed he lived one to two miles from the Baltimore property.

       {¶8}    In May 2020, Cincinnati Police Sergeant Christopher Clarkson, a

member of the “Place-Based Investigations of Violent Offender Territories” unit, made

a traffic stop on Rainey per a “gang unit” officer’s request. Clarkson did not see the

violation and found no contraband. Clarkson gave Rainey a warning and let him go.

       {¶9}    In October 2020, Cincinnati Police Officer Joshua Condon pulled over

Rainey about a block from the Baltimore property after receiving a report from the

“Gun Crime Task Force” and the “Gang Unit,” which work hand-in-hand, that Rainey

had committed a traffic violation. Condon saw marijuana “shake” (the loose substance

                                            3
                    OHIO FIRST DISTRICT COURT OF APPEALS



that remains after separating marijuana seeds from leaves) in the console of the car,

but he did not arrest Rainey because the amount was “unrecoverable.” He found no

other contraband or money.

                          Police observed the Baltimore property

       {¶10} Weigand testified that the police had been surveilling the Baltimore

property “off and on,” about 30 times over the course of a year, as the “goal [was] to

get a search warrant for that residence to go in there and see what’s going on.”

Investigators passing the Baltimore property would stop and watch from a church

parking lot if they saw activity. If not, they would keep driving.

       {¶11} Weigand conducted a search to determine who owned the Baltimore

property—it was not in Rainey’s name. He did not investigate who paid rent or taxes

at the Baltimore property.

      A neighbor’s camera captured Rainey accessing the Baltimore property

       {¶12} Police eventually learned the community center next door had an

exterior camera pointing in the direction of the Baltimore property. The community

center let the police “view their cameras and observe Rainey coming and going from

the place using a key.”

       {¶13} The state introduced only one instance of the community center’s

surveillance camera footage, from January 21, 2021. The footage showed Rainey

sitting in his car. Within five to ten minutes apart from each other, Rainey and co-

defendant Tye used a key to access the Baltimore property. After a few minutes, the

men left at the same time, Tye on foot and Rainey by vehicle.




                                            4
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} Weigand testified that officers attempted to approach Tye after he left

the Baltimore property on January 21, 2021. Tye, however, fled on foot after throwing

a bag that he had been carrying, which contained $50,000 and scales.

                   Officers conducted a final traffic stop on Rainey

       {¶15} Weigand testified that another officer, Taylor Howard, witnessed

Rainey engage in a hand-to-hand drug transaction around the corner from the

Baltimore property on January 21, 2021. But Howard testified, “They radioed for us to

stop his vehicle for a hand-to-hand drug transaction that they observed.” Howard and

his partner stopped Rainey after they saw Rainey make an illegal U-turn and searched

him and the vehicle.

       {¶16} In Rainey’s car, Howard found a receipt book containing what he

believed were various addresses from locations that Rainey claimed he either owned

or managed. He found $3,500 in cash that was “stack[ed]” according to denomination

in a bag sitting in the front seat. Officers found no drugs other than marijuana “shake.”

Officers let him go with a warning for the U-turn after about ten minutes.

         Officers obtained a warrant and searched the Baltimore property

       {¶17} Officers obtained a search warrant for the Baltimore property. Rainey

was not identified on the warrant. With the help of a S.W.A.T. team, officers searched

the Baltimore property the same evening that they attempted to approach Tye and

stopped Rainey for the final time.

       {¶18} The main area of the Baltimore property contained a kitchen, a living

area, and a back room. The basement was not accessible from the main part of the

house. When Weigand walked into the Baltimore property, he saw that the kitchen



                                           5
                    OHIO FIRST DISTRICT COURT OF APPEALS



counter was “covered with different kinds of drugs and drug-processing equipment

and drug scales.”

       {¶19} During the search, officers found a large amount of contraband

throughout the kitchen, including on the stove, the kitchen table, the counters, under

the sink, and in a drawer. Specifically, officers found digital scales with drug residue,

money, foil, fentanyl packaged in foil, cocaine, and marijuana. On the kitchen table

were three unloaded, but operable, guns, one with an extended magazine. In a kitchen

cabinet, they located cocaine, ammunition, two guns and a magazine with five rounds.

In another kitchen cabinet, officers found false-bottom food containers filled with bags

of drugs. In a kitchen drawer, officers found five bags of drugs. On the kitchen

counters, they found more drugs, money, and blenders caked with white residue.

Under the kitchen sink were more drugs.

       {¶20} In the living room, officers found a drum magazine (used to hold a large

number of bullets), more drugs, a digital scale, bullets, and photographs of Rainey and

Tye. And in the back room, officers found marijuana, a large amount of ammunition,

money, boxes for the guns, and “cut,” a powder used to mix cocaine and fentanyl.

Officers recovered a total of $7,254 from the Baltimore property. Further, alone in the

Baltimore property was a Cane Corso dog “about the size of a tiger” named “Rambo.”

       {¶21} And the state introduced paperwork found at the Baltimore property

bearing Rainey’s name, such as articles of organization for two limited liability

companies of which Rainey was an owner, an accident report in which Rainey was

involved, a letter to Rainey from the housing inspector, and a 2020 dog license for a

Cane Corso signed by Rainey and listing the Baltimore property as the address.



                                           6
                    OHIO FIRST DISTRICT COURT OF APPEALS



              2. Rainey objected to the court’s jury instructions

       {¶22} The trial court’s instruction stated, “Constructive possession will be

established where the accused was able to exercise dominion or control over the

contraband.” Rainey objected to the court’s proposed jury instruction involving

constructive possession, arguing that the court should follow State v. Mitchell, 

, 

, 

 (1st Dist.). Citing Mitchell,

Rainey’s proffered jury instruction stated, “Constructive possession occurs when an

individual exercises dominion and control over an object, even though that object may

not be within his immediate physical possession.” See id. at ¶ 5.

       {¶23} The trial court’s instructions to the jury read, in part:

       Possession may be actual or constructive. While mere presence in the

       vicinity of contraband is insufficient to establish possession,

       constructive possession will be established where the accused was able

       to exercise dominion or control over the contraband.

       However, the mere fact that contraband is located within the premises

       under one’s control does not of itself constitute constructive possession.

       It must also be shown that the person was conscious of the presence of

       the contraband.

       {¶24} During deliberations, the jury submitted a question asking the court to

define the essential elements of trafficking in cocaine. The court reread the

instructions, including the constructive-possession instruction. The jury returned

approximately 40 minutes later, finding Rainey guilty of all the drug-possession and

trafficking counts. Rainey now appeals.



                                           7
                   OHIO FIRST DISTRICT COURT OF APPEALS



                             II.    Law and Analysis

       {¶25} Rainey asserts three assignments of error: that the trial court’s

constructive-possession jury instruction misstated the law, he received the ineffective

assistance of counsel, and his convictions were not supported by sufficient evidence

and were contrary to the manifest weight of the evidence.

       A. The trial court correctly instructed the jury on constructive
          possession

       {¶26} In his first assignment of error, Rainey argues that the trial court’s

constructive-possession jury instruction materially misstated Ohio law and misled the

jury. He asserts that the trial court’s choice of the words, “able to exercise dominion

or control” changed the behavior necessary to establish constructive possession, and

those words are not interchangeable with “exercises dominion or control.”

       {¶27} Rainey further argues that the placement and ordering of sentences in

the instruction changed its meaning. The jury instructions stated, “However, the mere

fact that contraband is located within the premises under one’s control does not of

itself constitute constructive possession. It must be also shown that the person was

conscious of the presence of the contraband.” He asserts that “however” and “must be

also” connect the sentences, “render[ing] them capable of only one interpretation – as

long as the defendant knew the contraband was in the premises over which Mr. Rainey

had control, Rainey can be found to have constructive possession of the contraband.”

              1. A trial court’s jury instructions must accurately state the law

       {¶28} In reviewing a trial court’s jury instructions, we consider the

instructions as a whole and determine whether the court correctly stated the law. State

v. Dean, 

, 

, 

. If the instruction

misstated the law, we consider whether the erroneous instruction misled the jury. 

                                          8
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶29} A trial court must fully and completely provide the jury with all

instructions that are relevant and necessary for it to weigh the evidence and to

discharge its duty as the factfinder. State v. Houston, 1st Dist. Hamilton No. C-190598,

, citing State v. Comen, 

, 

(1990), paragraph two of the syllabus; State v. Robinson, 1st Dist. Hamilton No. C-

060434, 

. An instruction cannot be judged in isolation; rather,

it must be viewed in the context of the overall charge. Robinson at ¶ 18, citing State v.

Price, 

, 

 (1979), paragraph four of the syllabus.

       {¶30} A trial court must give a defendant’s requested instructions to the jury

if they are correct, pertinent statements of law and are appropriate under the facts of

the case. Houston at ¶ 34, citing State v. Lessin, 

, 

 (1993); State v. Bush, 1st Dist. Hamilton No. C-090291, 

, ¶ 13. But

a trial court need not provide the requested instruction verbatim; instead, it may

communicate the same legal principles using its own language. State v. Brewster, 1st

Dist. Hamilton Nos. C-030024 and C-030025, 

.

              2. The trial court’s jury instructions accurately explained constructive-
                 possession law

       {¶31} Rainey maintains that his proposed jury instruction—that constructive

possession exists “when an individual exercises dominion and control over an

object”—accurately reflects Ohio’s constructive-possession law. In support of his

proposed instruction, Rainey argues that the trial court misstated the law when it

instructed the jury that “constructive possession will be established where the accused

was able to exercise dominion or control over the contraband.” He contends that

the trial court’s instruction misstates the law of constructive possession. We disagree.


                                           9
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶32} R.C. 2925.11(A)(2) provides, “No person shall knowingly obtain,

possess, or use a controlled substance or a controlled substance analog.” Under R.C.

2925.01(K), “ ‘[p]ossess’ 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.” Possession may be actual or constructive. State v. Hankerson, 

, 

 (1982), syllabus.

       {¶33} In the First District, constructive possession may exist when an

individual, conscious of an object’s presence, “is able to exercise dominion and control

over an item, even if he does not have immediate physical possession of it.” State v.

Devaughn, 1st Dist. Hamilton No. C-180586, 

, citing Hankerson

at syllabus; see State v. Murrell, 1st Dist. Hamilton No. C-020333, 

,

¶ 18 (“Constructive possession is present when the accused is able to exercise

dominion or control over the contraband.”); State v. Bettis, 1st Dist. Hamilton No. C-

060202, 

 (“Constructive possession exists when a person is able

to exercise dominion and control over an item, even without physically possessing

it.”); State v. Hart, 1st Dist. Hamilton No. C-060686, 

. In these

instances, knowledge of the object’s presence is significant. “Otherwise a conviction

could be based upon drugs placed by another.” Devaughn at ¶ 32, citing Hankerson at

syllabus. Indeed, for nearly 50 years this court has held that constructive possession

can be established with “evidence that a defendant was both aware of the presence of

illegal drugs and had the power to control them.” Cincinnati v. Stirsman, 

, 283 (1st Dist.1974).




                                            10
                   OHIO FIRST DISTRICT COURT OF APPEALS



       {¶34} We recognize that this court has also explained that “[c]onstructive

possession occurs when ‘an individual exercises dominion and control over an object,

even though that object may not be within his immediate physical possession.’ ”

Mitchell, 

, 

, 

, quoting

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

, citing

Hankerson at syllabus. But Mitchell and Thomas do not mean that the trial court

misstated the law. Rather, “[c]onstructive possession exists when a person exercises

or has the power to exercise dominion and control over a [known] object, even though

there has been no physical contact with it.” State v. Green, 1st Dist. Hamilton No. C-

860791, 

, 8 (Apr. 20, 1988).

       {¶35} To hold otherwise would bring this court into conflict with every Ohio

appellate district. See State v. Keister, 2d Dist. Montgomery No. 29081, 2022-Ohio-

856, ¶ 44; see also State v. Bustamante, 3d Dist. Seneca Nos. 13-12-26 and 13-13-04,

; State v. Kingsland, 

, 

, 

 (4th Dist.); State v. Underdew, 5th Dist. Muskingum No. CT2021-

0006, 

; State v. Shelby, 

, 

, ¶ 24

(6th Dist.); State v. St. John, 7th Dist. Belmont No. 09 BE 13, 

, ¶ 19;

Ohio v. Marneros, 8th Dist. Cuyahoga No. 109258, 

; State v.

Lorenzo, 9th Dist. Summit No. 26214, 

; State v. Edwards, 10th

Dist. Franklin No. 17AP-738, 

; State v. Little, 11th Dist. Portage

Nos. 2023-P-0011 and 2023-P-0012, 

; State v. Lee, 12th Dist.

Fayette Nos. CA2020-09-014 and CA2020-09-015, 

.

       {¶36} Here, the trial court instructed the jury:



                                          11
                     OHIO FIRST DISTRICT COURT OF APPEALS



       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.

       Possession is a voluntarily [sic] act that the possessor knowingly

       procured or received the thing possessed or was aware of the possessor’s

       control of the thing possessed for a sufficient time to have ended

       possession.

       A person has possession when he knows that he has an object on or

       about his person, property, or places where it is accessible to his use or

       direction and he has the ability or direct -- the ability to control or direct

       its use.

       Possession may be actual or constructive, while mere presence in the

       vicinity of contraband is insufficient to establish possession,

       constructive possession will be established where the accused was able

       to exercise dominion or control over the contraband.

       However, the mere fact that contraband is located within the premises

       under one’s control does not of itself constitute constructive possession.

       It must also be shown that the person was conscious of the presence of

       the contraband.

       {¶37} When read in their entirety, the jury instructions accurately reflect the

relevant constructive-possession law as described by this court and every other

appellate district in Ohio. The instructions clearly explain that (1.) possession may be

actual or constructive, (2.) a person’s mere presence near an object does not establish

                                            12
                    OHIO FIRST DISTRICT COURT OF APPEALS



possession, and (3.) constructive possession exists where a person is aware of an

object’s presence and is able to exercise dominion and control over the object. We find

no merit to Rainey’s argument.

              3. Placement and order of sentences did not misstate the law

       {¶38} Rainey also contends that the trial court’s placement and order of

sentences changed their meaning: “However, the mere fact that contraband is located

within the premises under one’s control does not of itself constitute constructive

possession. It must be also shown that the person was conscious of the presence of the

contraband.” He argues that this can only be understood to mean that a defendant

constructively possesses that contraband if the defendant knows contraband is in a

premises over which the defendant has control. This, Rainy claims, is not the law.

       {¶39} But this portion of the jury instructions recites, verbatim, the Ohio

Supreme Court’s explanation of constructive possession as stated in Hankerson. In

Hankerson, the court defined constructive possession and explained that Mr. and Mrs.

Hankerson “had dominion and control of the home,” but reasoned, “However, the

mere fact that the property is located within the premises under one’s control does

not, of itself, constitute constructive possession. It must also be shown that the person

was conscious of the presence of the object.” Hankerson, 

, 

. Mr. and Mrs. Hankerson’s convictions were upheld based on their

constructive possession of stolen stereo speakers in their son’s bedroom, where the

speakers were “overtly displayed,” the Hankersons “had knowledge of and reason to

believe that the stereo equipment * * * was stolen” and the Hankersons had reason to

believe that their son “brought stolen property into the family home.” 

.




                                           13
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶40} More recently, in the context of firearm-related charges, this court

explained that “[c]onstructive possession may be inferred where the defendant has

control and dominion over the premises and is aware that the item is on those

premises.” State v. Jackson, 1st Dist. Hamilton No. C-110570, 

;

see State v. Harris, 8th Dist. Cuyahoga Nos. 98183 and 98184, 

(rejecting a similar challenge to jury instructions regarding constructive possession).

       {¶41} Reading the instructions together, the trial court correctly informed the

jury that mere access to an object, achieved through control or dominion of the

premises, does not amount to constructive possession of the object. We find no error

in the trial court’s jury instructions. Thus, we overrule the first assignment of error.

       B. Rainey received the effective assistance of counsel

       {¶42} Rainey’s second assignment of error asserts that he received ineffective

assistance of counsel, denying him his sixth amendment right to counsel.

               1. Ineffective-assistance claims require proof of deficiency and
                  prejudice

       {¶43} To succeed on an ineffective-assistance-of-counsel claim, an appellant

must show that (1) counsel’s performance was deficient, and (2) the deficient

performance deprived the appellant of a fair trial. Strickland v. Washington, 

, 

, 

 (1984). “A defendant’s failure to satisfy one

prong of the Strickland test negates a court’s need to consider the other.” State v.

Madrigal, 

, 

 (2000).

       {¶44} In any ineffectiveness-of-counsel case, counsel’s decisions must be

directly assessed for reasonableness, applying a heavy measure of deference to

counsel’s judgments. 

. “A licensed attorney is presumed to be

competent, and a defendant claiming ineffective assistance bears the burden of proof.”
                                         14
                    OHIO FIRST DISTRICT COURT OF APPEALS



State v. Smith, 

, 

 (1985). Debatable trial tactics

do not demonstrate deficient performance and “do not constitute a deprivation of the

effective assistance of counsel.” State v. Smith, 1st Dist. Hamilton No. C-180151, 2019-

Ohio-5264, ¶ 63, quoting State v. Clayton, 

, 

(1980). We “must refrain from second-guessing strategic, tactical decisions and

strongly presume that counsel’s performance falls within a wide range of reasonable

legal assistance.” State v. Carter, 

, 

 (1995).

       {¶45} “To warrant reversal, ‘(t)he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’ ” State v. Bradley, 

, 

 (1989), quoting 

. “Speculation about the

factfinder’s possible reaction to trial counsel’s strategy is insufficient to demonstrate

prejudice.” State v. Sowell, 

, 

, 

, ¶

142.

              2. Counsel’s performance was not deficient

       {¶46} Rainey argues that he was prejudiced by trial counsel’s failure to

preserve his objection to the trial court’s constructive-possession instruction. But

because the trial court’s constructive-possession instruction was a correct statement

of law, Rainey’s counsel was not ineffective for failing to preserve his challenge to the

instruction. Rainey also argues that he was prejudiced by counsel’s failure to object to

irrelevant and hearsay evidence, which allegedly tainted the jury’s verdict.

                      a. Surveillance evidence

       {¶47} Rainey challenges the testimony and evidence involving police traffic

                                           15
                    OHIO FIRST DISTRICT COURT OF APPEALS



stops and surveillance during the year before his arrest, arguing that the testimony

was elicited solely to portray Rainey as a drug trafficker without any evidence to

substantiate it. Specifically, Rainey asserts that allowing the jury to know that police

had been surveilling Rainey for a year before his arrest was prejudicial because it

“usurped the presumption of innocence.”

       {¶48} After police first saw Rainey enter and exit from the Baltimore property

about a year before his arrest, an officer performed a pretextual stop to identify Rainey.

The officers stopped him on other occasions when he was in the vicinity of or at the

Baltimore property. The officers who stopped Rainey testified that they were in various

units that monitored drugs, gangs, and violence. Officer Condon testified, without

objection, that he saw in Rainey’s vehicle “marijuana shake,” which is left over from

someone using a grinder to separate marijuana seeds from leaves.

       {¶49} We cannot say that Rainey’s counsel’s failure to object was not trial

strategy. But even if counsel should have objected, Rainey cannot establish that there

was a reasonable probability of a different outcome in his trial. There was a plethora

of evidence supporting Rainey’s convictions. If the trial court had excised evidence

about the police surveillance and traffic stops, the result likely would remain the same.

                      b. Evid.R. 404 Evidence

       {¶50} Rainey takes issue with an officer describing Rainey as a drug dealer,

asserting that it was other-acts evidence under Evid.R. 404(B) to which Rainey’s

counsel should have objected.

       {¶51} Though Rainey takes issue with the officer’s description of Rainey—

calling him a “larger-scale drug trafficker”—he fails to explain how this amounted to

other-acts evidence. The crux of this case is that Rainey used the Baltimore property

                                           16
                    OHIO FIRST DISTRICT COURT OF APPEALS



as his base for his drug-trafficking operation. Counsel was not ineffective for failing to

object to other-acts testimony that did not exist.

                      c. Cumulative Error

       {¶52} Finally, Rainey asserts that the cumulative effect of trial counsel’s

ineffective assistance deprived him of his sixth amendment right to counsel. But

because we hold that Rainey’s counsel’s performance was not deficient, there was no

cumulative error. We overrule Rainey’s second assignment of error.

       C. Rainey’s convictions were supported by sufficient evidence

       {¶53} Rainey’s third assignment of error argues that his convictions were

based on insufficient evidence, denying him due process under the Fourteenth

Amendment to the United States Constitution. A sufficiency-of-the-evidence claim is

a legal standard that tests whether the state presented sufficient evidence to support

the verdict. See State v. Messenger, 

, 

, 

, quoting State v. Thompkins, 

, 

 (1997).

This court views the evidence in a light most favorable to the state and determines

whether a rational trier of fact could have found that the state proved each element of

the offense beyond a reasonable doubt. State v. MacDonald, 1st Dist. Hamilton No. C-

180310, 

. This court does not weigh the evidence unless, after

viewing the evidence, it weighs heavily against conviction. 

       {¶54} R.C. 2925.11(A) prohibits a person from “knowingly obtain[ing],

possess[ing], or us[ing] a controlled substance or a controlled substance analog.” And

R.C. 2925.03(A)(2) prohibits a person from knowingly “[p]repar[ing] for shipment,

ship[ping], transport[ing], deliver[ing], prepar[ing] for distribution, or distribut[ing]

a controlled substance or a controlled substance analog, when the offender knows or

                                           17
                    OHIO FIRST DISTRICT COURT OF APPEALS



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.”

       {¶55} The amount of drugs and drug-processing equipment found inside of

the Baltimore property alone indicated that the property’s purpose was to store and

prepare drugs for distribution. Police observed Rainey at the property multiple times

over the course of one year. His personal documents were recovered during the search

of the Baltimore property. Rainey accessed the house with a key at least once. A

rational trier of fact could have found that Rainey knowingly possessed drugs and

prepared those drugs for shipment or distribution, knowing that the drugs were

intended for resale. We, therefore, overrule Rainey’s third assignment of error.

           D. Rainey’s convictions were not contrary to the weight of the
              evidence

       {¶56} In his fourth assignment of error, Rainey argues that his convictions

were against the manifest weight of the evidence, denying him due process under the

Fourteenth Amendment to the United States Constitution. Rainey challenges the

jury’s resolution of the conflicting and inconsistent evidence, arguing that it created a

manifest miscarriage of justice.

       {¶57} To determine whether a defendant’s convictions were contrary to the

manifest weight of the evidence, this court reviews the record, weighs the evidence and

all reasonable inferences, considers the witnesses’ credibility, and determines whether

the trier of fact “clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be overturned.” MacDonald, 1st Dist. Hamilton No. C-

180310, 

, quoting State v. Martin, 

,

 (1st Dist.1983). While this court considers witness credibility, “the trier

of fact is in the best position to judge the credibility of the witnesses and the weight to
                                            18
                     OHIO FIRST DISTRICT COURT OF APPEALS



be given to the evidence presented.” State v. Carson, 1st Dist. Hamilton No. C-180336,

.

       {¶58} We reverse a conviction on manifest-weight grounds only in

“exceptional cases in which the evidence weighs heavily against the conviction.”

MacDonald at ¶ 24. This court will not “substitute [our] judgment for that of the trier

of fact on the issue of credibility of the witnesses unless it is patently apparent that the

factfinder lost its way.” State v. Richards, 1st Dist. Hamilton No. C-210656, 2022-

Ohio-4698, ¶ 13, quoting State v. Williams, 10th Dist. Franklin No. 10AP-779, 2011-

Ohio-4760, ¶ 21, quoting State v. Woullard, 

, 

,

, ¶ 81 (2d Dist.).

       {¶59} Rainey asserts that the jury lost its way because the evidence against

him was “inconsistent, weak, and unpersuasive.” We disagree. The jury was free to

choose to accept some, all, or none of the testimonial evidence, and it was in the best

position to assess the credibility of the witnesses’ testimonies as to what they observed.

See State v. Gasper, 1st Dist. Hamilton No. C-220218, 

, citing

State v. Fether, 5th Dist. Stark No. 2011-CA-00148, 

.

       {¶60} This is not one of those rare cases in which the evidence weighs heavily

against the convictions. We overrule Rainey’s fourth assignment of error.

                                   III.   Conclusion

       {¶61} For the reasons stated above, we overrule Rainey’s assignments of error

and affirm the trial court’s judgment.


                                                                      Judgment affirmed.

CROUSE, P.J., and WINKLER, J., concur.

Please note:
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            OHIO FIRST DISTRICT COURT OF APPEALS




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




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