[Cite as State v. Howard, 2013-Ohio-5125.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 99535



                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    LEDON HOWARD
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-560663

         BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Blackmon, J.

         RELEASED AND JOURNALIZED:                     November 21, 2013
ATTORNEY FOR APPELLANT

Richard Agopian
The Hilliard Building
1415 West 9th St., 2nd Floor
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: James M. Rice
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:

         {¶1} Defendant-appellant Ledon Howard appeals his conviction in the Cuyahoga

County Court of Common Pleas. For the following reasons, we affirm.

         {¶2} A true bill indictment was returned against Howard charging him with drug

trafficking in violation of R.C. 2925.03(A)(2) and drug possession in violation of R.C.

2925.11(A).      Appellant pled not guilty to the charges and the case proceeded to a jury

trial.

         {¶3} The facts presented at trial were as follows: On March 14, 2012, Janiece

Kates loaned her 2008 Ford Focus to Howard at approximately 10 p.m. He did not return

with the vehicle.     Michael Reese, an investigator for the City of Cleveland Heights

Division of Police responded to a report of a male asleep at the wheel at the intersection

of Lee Road and Euclid Heights Boulevard in the early morning hours of March 15,

2012.      Reese and another officer found Howard asleep at the wheel of Kates’ vehicle.

The car was in drive but Howard’s left foot was on the brake.        Officer Reese woke

Howard and administered a field sobriety test that indicated a level of impairment for

driving.

         {¶4} Howard was arrested and the vehicle was inventoried prior to tow.    During

the inventory, police discovered marijuana as well as a plastic bag of pink tablets that

they believed to be ecstasy.    The drugs were found in the partially open center console

of the vehicle that was readily accessible to Howard.   At the police station officer Reese

administered a breathalyzer test which eliminated alcohol as the cause of Howard’s
impairment.     Officer Reese asked Howard if he had taken any drugs and Howard

admitted that he had taken ecstasy.

       {¶5} The recovered bag contained 68 tablets that were submitted to BCI for

analysis that revealed that the tablets contained N-Benzylpiperazine (BZP), a schedule I

substance. The BCI analyst who tested the tablets testified that BZP is commonly found

in ecstasy tablets.

       {¶6} Howard moved for acquittal of both charges pursuant to Crim.R. 29 and the

trial court granted the motion with respect to the drug trafficking charge only.   The jury

found appellant guilty as charged.    The trial court imposed a prison term of four years, a

fine of $7,500 and three years of mandatory postrelease control.            Howard timely

appealed presenting three assignments of error.

       {¶7} Howard’s first assignment of error states:

             The evidence was insufficient to convict the defendant of drug
       possession.

       {¶8} This court has said that, in evaluating a sufficiency of the evidence

argument, courts are to assess not whether the state’s evidence is to be believed but

whether, if believed, the evidence against a defendant would support a conviction. State

v. Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, ¶ 13, citing State v. Thompkins,

78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. The relevant inquiry then is

whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt. Id.

      {¶9} Appellant first argues that the state presented insufficient evidence that he

possessed the plastic bag of tablets containing BZP. “Possess” or “possession” means

“having control over a thing or substance, but may not be inferred solely from mere

access to the thing or substance through ownership or occupation of the premises upon

which the thing or substance is found.” R.C. 2925.01(K); State v. Gordon, 8th Dist.

Cuyahoga No. 97336, 2012-Ohio-4930, ¶ 34-35.

      {¶10} “Possession” may be either actual physical possession or constructive

possession.   State v. Jackson, 8th Dist. Cuyahoga No. 97743, 2012-Ohio-4278, ¶ 38,

citing State v. Haynes, 25 Ohio St.2d 264, 269-270, 267 N.E.2d 787 (1971).

“Constructive possession exists when an individual knowingly exercises dominion and

control over an object, even though that object may not be within the individual’s

immediate physical possession.” State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d

1362 (1982), syllabus. Constructive possession may be established by circumstantial

evidence. State v. Baird, 8th Dist. Cuyahoga No. 96352, 2011-Ohio-6268, ¶ 19.

      {¶11} The elements of an offense may be established by direct evidence,

circumstantial evidence, or both. State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674

(1991).   Circumstantial and direct evidence are of equal evidentiary value. State v.

Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-1691, ¶ 12.

      {¶12} Howard argues that the state failed to present sufficient evidence of his

constructive possession of the BZP tablets in this case because Janiece Kates, the owner
of the vehicle, testified that she allowed other individuals to borrow and use the car.

Howard argues that the state failed to present evidence linking him to the discovered

drugs as opposed to any of the other individuals who used the vehicle. We disagree.

Howard was discovered unconscious and intoxicated at the wheel of a vehicle still in

drive.    The center console where the BZP tablets were recovered was partially open and

readily accessible to Howard.         Alcohol was eliminated as the potential cause of

Howard’s intoxication and Howard admitted that he had taken ecstasy. On these facts, we

find that the state presented sufficient circumstantial evidence of constructive possession.

         {¶13} Howard also argues that the evidence was insufficient to convict him of

drug possession in an amount that was more than five times the bulk amount. R.C.

2925.01 defines the “bulk amount” of a schedule I hallucinogen, stimulant or depressant

as “[a]n amount equal to or exceeding thirty grams or ten unit doses * * *.”              R.C.

2925.01 further defines “unit dose” to mean “an amount or unit of a compound, mixture,

or preparation containing a controlled substance that is separately identifiable and in a

form that indicates that it is the amount or unit by which the controlled substance is

separately administered to or taken by an individual.”

         {¶14} The Ohio BCI expert who analyzed the tablets testified that each tablet

constituted a unit dose and 68 were confiscated.      The state presented sufficient evidence

that appellant possessed five times the bulk amount of BZP in this instance.

         {¶15} Finally, appellant argues that it was improper for the jury to infer that all 68

tablets contained BZP because only 22 of the 68 tablets were tested.                 We have
previously rejected this type of argument. The “random sampling method of testing

creates a reasonable inference that all similar contraband contains the same controlled

substance as that tested, at least when the contraband is recovered together and similarly

packaged.” State v. Mitchell, 8th Dist. Cuyahoga No. 93076, 2010-Ohio-520, ¶ 12,

quoting State v. Samatar, 152 Ohio App.3d 311, 2000-Ohio-1639, 787 N.E.2d 691 (10th

Dist.).

          {¶16} Appellant’s first assignment of error is overruled.

          {¶17} Howard’s second assignment of error states:

          The appellant’s conviction is against the weight of the evidence.

          {¶18} A manifest weight challenge questions whether the prosecution met its

burden of persuasion. State v. Byrd, 8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶

27.   When considering a manifest weight challenge, a reviewing court reviews the entire

record, weighs the evidence and all reasonable inferences therefrom, considers the

credibility of the witnesses and determines whether the finder of fact clearly lost its way.

State v. Jackson, 8th Dist. Cuyahoga No. 86542, 2006-Ohio-1938, ¶ 29. A reviewing

court may reverse the judgment of conviction if it appears that the trier of fact clearly lost

its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.     Id.

          {¶19} In light of the evidence presented at trial, particularly Howard’s admission

that he had taken ecstasy, his intoxicated state when discovered at the wheel of the

vehicle and his proximity and ready access to the recovered BZP tablets we cannot say
that the finder of fact clearly lost its way in finding appellant guilty of possession.

       {¶20} Appellant’s second assignment of error is overruled.

       {¶21} Howard’s third assignment of error states:

       The court erred by failing to give a proper instruction on bulk amount.

       {¶22} Howard argues that the trial court erred by omitting part of the definition

found in R.C. 2925.01(D)(1)(c) on “bulk amount” when instructing the jury.            The trial

court defined bulk amount as “an amount equal to or exceeding 30 grams or 10 unit doses

of a compound, mixture, preparation or substance,” but omitted the next segment that

clarifies that the definition is in reference to “a schedule I hallucinogen other than

tetrahydrocannabinol or lysergic acid amide, or a schedule I stimulant or depressant.”

       {¶23} Because appellant did not object to the jury instructions, we review this

claim for plain error.          State v. Leonard, 8th Dist. Cuyahoga No. 98626,

2013-Ohio-1446, ¶ 32; Crim.R. 30(A).         Under Crim.R. 52(B), a plain error affecting a

substantial right may be noticed by an appellate court even though it was not brought to

the attention of the trial court.   An error rises to the level of plain error only if, but for

the error, the outcome of the proceedings would have been different. State v. Harrison,

122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61; State v. Long, 53 Ohio

St.2d 91, 97, 372 N.E.2d 804 (1978). Notice of plain error “is to be taken with the utmost

caution, under exceptional circumstances, and only to prevent a manifest miscarriage of

justice.” Id.

       {¶24} We find no plain error in this instance. Although the trial court did not
read the entire definition of bulk amount from R.C. 2925.01(D)(1)(c), the portion the

court omitted was unnecessary context because the court had previously instructed the

jury regarding the alleged possession of BZP and stated that it was a schedule I drug.

Furthermore, the jury verdict forms stated that the jury specifically found Howard guilty

of possession of BZP.

       {¶25} Appellant’s third assignment of error is overruled.

       {¶26} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

lower court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
