[Cite as State v. Combs, 2018-Ohio-2420.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2017-CA-53
                                                  :
 v.                                               :   Trial Court Case No. 2016-CR-287
                                                  :
 KYLE S. COMBS                                    :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                            Rendered on the 22nd day of June, 2018.

                                             ...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

JENNIFER D. BRUMBY, Atty. Reg. No. 0076440, 4407 Walnut Street, Suite 210, Dayton,
Ohio 45440
      Attorney for Defendant-Appellant

                                            .............




TUCKER, J.
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       {¶ 1} Defendant-appellant Kyle Combs appeals from his conviction and sentence

for possession of heroin. He contends that the State failed to present evidence sufficient

to support the conviction and that the conviction is against the manifest weight of the

evidence.

       {¶ 2} We conclude that there is sufficient evidence upon which a rational finder of

fact could rely in concluding that Combs is guilty of possession of heroin. We further find

that the trial court, as the finder of fact, did not lose its way in convicting Combs.

Accordingly, the judgment of the trial court is affirmed.



                        I. Facts and Course of the Proceedings

       {¶ 3} On November 20, 2015, Fairborn Police Officer Nathan Penrod was on duty

when he was dispatched to investigate a call regarding a “potential intoxicated subject

that was unable to walk or having a hard time walking.” Tr. p. 16. Upon arriving at the

scene, he discovered a man, later identified as Combs, lying on the ground. Penrod

attempted to rouse the man, but was unsuccessful. Penrod noted no smell of alcohol.

He did however observe that the man’s pupils were “pinpoint” and he was snoring.

       {¶ 4} Penrod called for paramedics.        He then attempted to locate Combs’s

identification. Penrod lifted Combs’s shirt slightly and noted that a syringe was sticking

out of his left pants’ pocket; he also found a small plastic bag in the pocket. The bag

contained a white powder and a single pill. Both the syringe and the bag were taken into

police custody. The syringe was sent to the Miami Valley Regional Crime Laboratory for

testing. Forensic chemist Brooke Ehlers tested the syringe and found heroin residue in
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an amount too small to weigh.

       {¶ 5} Combs was indicted on one count of possession of heroin in violation of R.C.

2925.11(A). He filed a motion to suppress which the trial court denied. Combs waived

his right to a jury trial, and a bench trial was conducted on July 21, 2017. The trial court

found Combs guilty of the offense and sentenced him to community control sanctions with

the condition that he successfully complete the Greene Leaf Therapeutic Community

Program.

       {¶ 6} Combs appeals.



                 II. Sufficiency and Manifest Weight of the Evidence

       {¶ 7} The sole assignment of error asserted by Combs states as follows:

       MR. COMB’S [SIC] CONVICTION WAS AGAINST THE MANIFEST

       WEIGHT OF THE EVIDENCE AS THE STATE DID NOT PROVE HE

       KNOWINGLY POSSESSED RESIDUE.

       {¶ 8} We note that while Combs’ assignment of error states that he is challenging

the weight of the evidence, he also addresses the sufficiency of that evidence in his

argument. Thus, we will address both issues.

       {¶ 9} A sufficiency of the evidence analysis focuses upon whether the prosecution

presented adequate evidence, viewing such evidence in the light most favorable to the

prosecution, to sustain the verdict. (Citations omitted.) State v. Radford, 2d Dist. Clark

No. 2016-CA-80, 2017-Ohio-8189, ¶ 14.          The prosecution has presented sufficient

evidence when “any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” Id., quoting State v. Jenks, 61 Ohio St.3d
                                                                                         -4-


259, 574 N.E.2d (1991), paragraph two of the syllabus.

       {¶ 10} A manifest weight analysis, in contrast, requires an appellate court to review

the record, weigh the evidence and any reasonable inferences allowed by the evidence,

consider witness credibility, and determine whether the trier of fact, in resolving any

evidentiary conflicts, “clearly lost its way and created such a miscarriage of justice that

the conviction must be reversed and a new trial ordered.”         Radford at ¶ 15.     This

consideration of the evidence must be exercised with caution so that a new trial will only

be granted “in the exceptional case in which the evidence weighs heavily against the

conviction.” Id., quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st

Dist. 1983). Though different legal concepts are involved, if it is concluded that a verdict

is supported by the manifest weight of the evidence, the evidence, by necessity, is legally

sufficient. (Citations omitted.) Radford at ¶ 16.

       {¶ 11} Combs was convicted of possession of heroin. That offense is proscribed

by R.C. 2925.11(A) which provides that “[n]o person shall knowingly obtain, possess, or

use a controlled substance or a controlled substance analog.” “A person acts knowingly,

regardless of purpose, when the person is aware that the person's conduct will probably

cause a certain result or will probably be of a certain nature. A person has knowledge of

circumstances when the person is aware that such circumstances probably exist.” R.C.

2901.22(B).

       {¶ 12} Combs relies upon State v. Susser, 2d Dist. Montgomery No. 11787, 1990

WL 197958 (Dec. 5, 1990), as support for his contention that his conviction is not

supported by the evidence, because the heroin found in his possession was of such a

minute quantity that it cannot constitute a violation of R.C. 2925.11(A). He also cites
                                                                                       -5-

State v. Dempsey, 22 Ohio St.2d 219, 223, 259 N.E.2d 745 (1970), and State v. Brehem,

27 Ohio St.2d 239, 241, 272 N.E.2d 122 (1971), as support for his claim that the fact of

physical possession is insufficient to prove knowledge.

      {¶ 13} However, our holding in Susser was found to be in conflict with a decision

from the Eighth District Court of Appeals wherein the defendant was convicted of drug

abuse in violation of R.C. 2925.11. See State v. Teamer, 82 Ohio St.3d 490, 696 N.E.2d

1049 (1998) (“The certified issue is ‘whether the amount [of the controlled substance] is

a factor in determining the crime of drug abuse.’ ”) Further, both Dempsey and Brehem

pre-date Teamer.

      {¶ 14} In Teamer, the Ohio Supreme Court stated:

             In our view, the unambiguous language of R.C. 2925.11 punishes

      conduct for the possession of any amount of a controlled substance. It does

      not qualify the crime by stating that the amount of the drug must be of a

      certain weight.     We may not insert an amount provision into the

      unambiguous language of the statute. Appellant argues that because only

      a trace of cocaine was detected, it is drastically unfair to charge him with a

      felony crime when another statutory provision is more applicable.

      However, we find that this argument is better addressed to the General

      Assembly. We must apply the statute as written.

             Accordingly, we find that the quantity of a controlled substance is not

      a factor in determining whether a defendant may lawfully be convicted of

      drug abuse, in violation of R.C. 2925.11(A).          As long as there is

      scientifically accepted testimony from which a factfinder could conclude
                                                                                  -6-


beyond a reasonable doubt that a controlled substance was present, a

conviction for drug abuse pursuant to R.C. 2925.11(A) will not be reversed

based on the amount of contraband involved.

***

        In Ohio, juries are instructed that the element of knowledge is to be

determined from the attendant facts and circumstances particular to each

case.    “Since you cannot look into the mind of another, knowledge is

determined from all the facts and circumstances in evidence. You will

determine from these facts and circumstances whether there existed at the

time in the mind of the defendant an awareness of the probability that * * *.”

4 Ohio Jury Instructions (1997), Section 409.11(3). Likewise, case law

instructs, “Intent ‘ “can never be proved by the direct testimony of a third

person and it need not be. It must be gathered from the surrounding facts

and circumstances.” ’ ” State v. Lott (1990), 51 Ohio St.3d 160, 168, 555

N.E.2d 293, 302, quoting State v. Huffman (1936), 131 Ohio St. 27, * * *, 1

N.E.2d 313, paragraph four of the syllabus.

        Thus, whether a person charged with drug abuse in violation of R.C.

2925.11 knowingly possessed, obtained, or used a controlled substance is

to be determined from all the attendant facts and circumstances available.

If there is sufficient evidence such that a reasonable trier of fact could have

found that the state had proven guilt beyond a reasonable doubt, a

reviewing court may not reverse a conviction. State v. Jenks (1991), 61

Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
                                                                                       -7-

Id. at 491-492.

       {¶ 15} In this case, Penrod testified that, based upon his experience and training,

both the snoring and the “pinpoint” pupils he observed when he tried to rouse Combs

were indicative of a heroin overdose.     Penrod further testified that he observed the

paramedics administer a drug to Combs which caused him to regain consciousness, and

this also indicated to Penrod that Combs had overdosed on heroin.          Again, Ehlers

testified that, even though the residue discovered in the syringe found in Combs’s pocket

was too small to weigh, she was able to determine that it was heroin based upon accepted

scientific techniques.

       {¶ 16} Based upon the record before us, we cannot conclude that the trial court

lost its way in determining that Combs violated R.C. 2925.11(A), or that the State did not

present sufficient evidence to sustain the conviction. Accordingly, the sole assignment

of error is overruled.



                                     III. Conclusion

       {¶ 17} Combs’s sole assignment of error being overruled, the judgment of the trial

court is affirmed.

                                     .............



WELBAUM, P.J. and HALL, J., concur.



Copies mailed to:

Nathaniel R. Luken
Jennifer D. Brumby
                       -8-


Hon. Stephen Wolaver
