[Cite as State v. Williamson, 2017-Ohio-7098.]




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

 STATE OF OHIO                                        :
                                                      :
         Plaintiff-Appellee                           :   Appellate Case No. 27147
                                                      :
 v.                                                   :   Trial Court Case No. 2015-CR-2941
                                                      :
 DASHAWN E. WILLIAMSON                                :   (Criminal Appeal from
                                                      :   Common Pleas Court)
         Defendant-Appellant                          :
                                                      :

                                                 ...........

                                                 OPINION

                             Rendered on the 4th day of August, 2017.

                                                 ...........

MATHIAS H. HECK, JR., by LYNNE R. NOTHSTINE, Atty. Reg. No. 0061560, and
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorneys,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, Dayton, Ohio 45422
       Attorneys for Plaintiff-Appellee

CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 2541 Shiloh Springs Road, Dayton,
Ohio 45426
      Attorney for Defendant-Appellant

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



WELBAUM, J.
                                                                                       -2-




       {¶ 1} This case is before us on the appeal of Defendant-Appellant, Deshawn

Williamson, from his convictions and sentences for possession of heroin and possession

of cocaine. According to Williamson, the trial court abused its discretion by admitting a

jailhouse recording without proper authentication and also erred by denying his motion to

suppress.    In addition, Williamson contends that there was insufficient evidence to

sustain his convictions, and that the verdict was against the manifest weight of the

evidence.

       {¶ 2} For the reasons discussed below, we find no reversible error. The trial court

did not err in allowing a redacted jail telephone call to be admitted into evidence. First

of all, Appellant waived any error by failing to accept the State’s offer to make another

copy of the jail call.    In addition, no error occurred, as the State met the threshold

requirement for authentication.     Even if error had occurred, there was no basis for

reversing the judgment under a plain error analysis.

       {¶ 3} The judgment was also not against the manifest weight of the evidence and

was supported by sufficient evidence. Finally, the trial court did not err in overruling

Appellant’s motion to suppress evidence. Police officers had a reasonable, articulable

suspicion for detaining Appellant, and no evidence was obtained during the detention.

Concerning a warrantless search of an automobile Appellant had been driving, Appellant

disclaimed any interest in the automobile or its contents. As a result, Appellant had no

legitimate expectation of privacy in the automobile or its contents, and had no cognizable

Fourth Amendment challenge to the officers' search. Accordingly, the judgment of the

trial court will be affirmed.
                                                                                            -3-




                        I. Statement of Facts and Course of Proceedings

       {¶ 4} On September 18, 2015, Dayton Police Detective, Dustin Phillips, was

working in an undercover capacity in an unmarked car in the Crown Point or Residence

Park area of Dayton, Ohio.        This area included Midway, Hollencamp, and Malden

Avenues. At the time, Phillips was assigned to the narcotics bureau and focused much

of his street time on narcotics investigations.     The police had extensive experience in

this particular area and had made numerous drug and weapons arrests.                 Because

Phillips could not make traffic stops while using an unmarked car, Officer Rhodes was

nearby in a police cruiser; Phillips was communicating with Rhodes via radio.

       {¶ 5} Around noon, Phillips saw a red pickup truck on Midway Avenue that caught

his attention. Three people were in the truck, and the driver was talking on a cell phone,

which was activity Phillips had often observed as part of his drug investigations. The

vehicle was traveling slowly, and then pulled over and stopped in front of a vacant lot.

Again, Phillips had seen this behavior a number of times during his investigations. At

the time, Phillips was traveling westbound on Midway behind the truck.               To avoid

arousing suspicion, Phillips continued to the next intersection, which was located at

Hollencamp and Midway Avenues. At that point, Phillips was watching the truck through

his interior rear view mirror and side mirror to see if anyone exited the truck or if the truck

pulled back into traffic. This did not occur, however.

       {¶ 6} Phillips came to a stop sign and waited a few seconds. He then saw another

vehicle traveling northbound on Hollencamp, towards his own car. Because the vehicle

was less than a minute away, Phillips waited at the stop sign. The area was residential,
                                                                                           -4-


and seeing more than two vehicles in a block would be unusual. The approaching car

was a white 2005 Chrysler 300. When the Chrysler reached the intersection, it turned

right onto Midway, and drove eastbound past Phillips, toward the red pickup truck.

       {¶ 7} As the Chrysler passed, Phillips saw there was only one occupant, the driver.

He made note of the physical description, and also noticed that the vehicle’s side and

rear windows were heavily tinted, while the front window was not tinted. He was only

able to observe the driver for a brief time, about three seconds, but was able to see his

face. The driver had short, somewhat spiked-up dreadlocks, about the size of a pencil,

and the dreadlocks stuck directly up from the driver’s head.

       {¶ 8} Phillips had been working in the same area for a long time, and came in

contact with the same people over and over again. As a result, he made a habit of

looking for individuals he knew when he saw vehicles, and following up with some type

of action, like a traffic stop. Phillips did not recognize the driver, but could identify the

driver if he saw him again. In court, Phillips positively identified Williamson as the person

who was driving the Chrysler.

       {¶ 9} After the Chrysler passed Phillips, it pulled directly up next to the truck, with

the driver’s side windows of the two vehicles facing each other. Phillips saw the hands

of the drivers of both vehicles reach out, stay next to each other for two or three seconds,

and then come back into their vehicles. At this point, both vehicles drove off, traveling in

opposite directions.   Phillips believed he had seen suspicious activity, and radioed

Rhodes for assistance.

       {¶ 10} Phillips focused his attention on the Chrysler, based on his training and

experience, and the particular neighborhood. He had to do a U-turn to follow the car, but
                                                                                          -5-


waited until the car was out of his sight to avoid alerting the driver. Luckily, the Chrysler

immediately turned left at the next intersection, onto Malden Avenue. As soon as the car

turned, Phillips made a U-turn and traveled behind it. He turned left on Malden and saw

the Chrysler again. The Chrysler had been out of his sight for only about five seconds,

and was still traveling. Officer Rhodes was nearby, and as the Chrysler made its way up

Malden, Rhodes was approaching the intersection of Malden and Second Street.

       {¶ 11} When the Chrysler crossed Second Street, Phillips was about half a block

away on Malden. After crossing Second Street, the Chrysler pulled into a driveway at

426 Malden. Malden ends in a cul-de-sac, and there is not a lot of traffic since it is not a

through street. At that point, Phillips was at the intersection of Malden and Second, and

waited for Rhodes to pull his cruiser in front of Phillips’ car. This was a safety measure,

because people can think they are being ambushed and open fire on unmarked vehicles.

       {¶ 12} Rhodes pulled into the driveway at 426 Malden, and Phillips parked behind

him. Phillips was not able to see what had happened to the occupant of the vehicle after

it pulled into the driveway. As a result, the officers approached the Chrysler cautiously,

from both sides of the car. No one was inside the car, and it was still running.

       {¶ 13} The backyard was somewhat open, and Phillips could have seen if

someone were in the yard. The garage door was open, and Phillips thought someone

may have run inside the garage. Rhodes stayed at the back corner of the house, while

Phillips went to the opposite corner of the house. All windows, doors, and points of

entrance and exit were covered. Phillips had not yet reached the corner of the house

when he heard a window opening just around the corner from where he was walking. He

did not go around the corner, but stayed on the front corner of the house, where he was
                                                                                       -6-


able to see a reflection from a neighbor’s windows. Phillips saw a window opening and

a man (subsequently identified as Williamson) coming out. When Williamson jumped

onto the ground, Phillips immediately recognized him as the person he had seen driving

the Chrysler.

         {¶ 14} After Williamson jumped onto the ground, Phillips identified himself as a

police officer and ordered Williamson to the ground. Williamson complied, but before

getting all the way down, Williamson pulled out a flip phone. He opened the phone with

his thumb, jammed the screen into the ground, and broke the phone in half. At that point,

the police officers handcuffed Williamson. Because Williamson had jumped out of the

window, the officers asked if this was his house or if someone else was inside.

Williamson refused to answer. The officers then entered the house for the safety of

others, since they did not know if Williamson belonged at the house or had simply run

through the house from the vehicle. They found another person in the house, but this

was not the person who had been in the Chrysler.

         {¶ 15} Subsequently, when the officers checked the Chrysler, they found a bag of

capsules wrapped up in a sandwich baggie. The baggie was sitting on the passenger

seat and could be easily accessed.        Subsequent testing indicated that the baggie

contained 230 unit doses of heroin. The officers also found an additional baggie in the

middle console, in the ashtray, just below the radio. Testing indicated that this baggie

contained about 4.75 grams of cocaine. In addition, the officers found drugs in the house

and a gun in the garage, but Williamson was not charged with offenses relating to these

items.

         {¶ 16} After Williamson was arrested, he was indicted, as indicated, on one count
                                                                                        -7-


of possession of heroin in an amount exceeding 100 doses and less than 500 doses, a

second-degree felony; one count of possession of cocaine in an amount less than 5

grams, a fifth-degree felony; and tampering with evidence, a third-degree felony.

      {¶ 17} In November 2015, Williamson filed a motion to suppress, which was

overruled after a hearing on the motion.     Following a jury trial, Williamson was found

guilty of the heroin and cocaine charges, and not guilty of tampering with evidence. He

received a mandatory sentence of five years in prison on the heroin conviction, and eight

months on the cocaine conviction, with the terms to be served concurrently. Williamson

then appealed from his convictions and sentences.



                      II. Did the Court Err in Admitting a Jail Recording?

      {¶ 18} Williamson’s First Assignment of Error states that:

             The Trial Court Abused Its Discretion When It Admitted the Jailhouse

      Recording Without Proper Authentication Based on Evid. R. 901.

      {¶ 19} This assignment of error is based on the contention that the trial court erred

in admitting a jail recording because the recording was not properly authenticated under

Evid.R. 901. According to Williamson, the minimum threshold for authentication was not

met because of various deficiencies, including: generic testimony about how calls are

recorded and kept, rather than specific testimony about this case; the fact that the

recording does not identify the “PIN” number used to generate the call; the fact that no

witness identified Williamson’s voice; and the fact that the authenticating witness did not

know the date of the call or what method was used to search for the calls, and could not

state with certainty what PIN number was entered.
                                                                                           -8-


       {¶ 20} As a condition precedent to admissibility, Evid.R. 901(A) requires

authentication by “evidence sufficient to support a finding that the matter in question is

what its proponent claims.” This is a low threshold, “requiring only foundational evidence

for the trier of fact to conclude that the evidence is indeed what the proponent claims it to

be.” (Citations omitted.) State v. Dawson, 2d Dist. Greene No. 2009-CA-63, 2010-

Ohio-3904, ¶ 13.        “The testimony of a witness with knowledge is sufficient

authentication.” Id., citing Evid.R. 901(B)(1).

       {¶ 21} In response to Williamson’s argument, the State contends that while

telephone conversations are typically authenticated under Evid.R. 901(B)(5) or (6), they

may also be authenticated under Evid.R. 901(B)(4), which allows authentication based

on “[a]ppearance, contents, substance, internal patterns, or other distinctive

characteristics, taken in conjunction with circumstances.” Based on this theory, the State

contends that under the totality of circumstances, it is improbable that the telephone call

was made by anyone other than Williamson, due to the call’s timing and the fact that the

caller’s comments match the testimony of Detective Phillips.

       {¶ 22} Trial courts have discretion over the admission of evidence, and we review

their decisions for abuse of discretion. State v. Rios, 2d Dist. Clark No. 10CA0059, 2011-

Ohio-4720, ¶ 7, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). “ ‘Abuse

of discretion’ has been defined as an attitude that is unreasonable, arbitrary, or

unconscionable.” (Citation omitted.) AAAA Enterprises, Inc. v. River Place Community

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “[M]ost

instances of abuse of discretion will result in decisions that are simply unreasonable * * *.”

Id.   “A decision is unreasonable if there is no sound reasoning process that would
                                                                                           -9-

support that decision.” Id.

       {¶ 23} In State v. Wheeler, 2d Dist. Montgomery No. 12290, 1993 WL 265133 (July

16, 1993), we commented that “[t]ypically, telephone conversations are authenticated

through Evid.R. 901(B)(6), which covers * * * telephone calls placed by the witness

himself, or Evid.R. 901(B)(5), which permits authentication when the witness is able to

identify the other caller because he recognizes that caller's voice.” Id. at *2. However,

the conversation in Wheeler could not be authenticated in these ways because the police

officer who answered the telephone the defendant called did not know the defendant.

We noted that in such situations, “Rule 901(B)(4) contemplates that a caller may be

identified by the fact that the speech could only have been uttered by him, under the

circumstances. ‘A letter or a voice over the telephone may be related to a particular

person by the very fact that the matters set forth in the letter or the telephone conversation

were known peculiarly to a particular person.’ ” Id., quoting 1980 Staff Note, Evid.R. 901.

       {¶ 24} We have also said that “ ‘[t]elephone conversations are admitted where the

identity of the parties is “satisfactorily explained.” ’ ” State v. Carr-Poindexter, 2d Dist.

Montgomery No. 20197, 2005-Ohio-1571, ¶ 24, quoting State v. Williams, 64 Ohio App.2d

271, 274, 413 N.E.2d 1212 (8th Dist.1979).       In Carr-Poindexter, we stressed that such

testimony is properly admitted “ ‘where there is a reasonable showing, through testimony

or other evidence, that the witness placed or received a call as alleged, plus some

indication of the identity of the person spoken to.       “There is no fixed identification

requirement for all calls.” * * * “Each case has its own set of facts.” ’ ” Id., quoting State

v. Vrona, 47 Ohio App.3d 145, 149, 547 N.E.2d 1189 (9th Dist.1988). These facts may

be established through either direct or circumstantial evidence. Id., citing Williams at
                                                                                          -10-


274.

       {¶ 25} We have reviewed the transcript as well as the content of the telephone call.

Deputy Sergeant Vitali, who supervises day-to-day management in the Montgomery

County Jail, testified that he had access to the electronic records in the jail’s computerized

system. Vitali explained the process by which inmates may make calls. Inmates use a

phone in their cell or housing area, and input their personal PIN number, which is the last

four digits of their armbands plus the last four digits of their social security numbers. As

calls are being made, they are recorded. The PIN number is unique to each inmate.

Phone records are maintained by a computer system, and are accessed with a login and

password.

       {¶ 26} In order to search for particular telephone calls, police can use various

parameters like a phone number to which a call was made, an inmate’s armband number,

or an inmate’s last name. Once phone calls are located, they can be downloaded from

the server. During the download process, no alterations, modifications, or deletions are

made to any part of a call. Vitali’s testimony also clearly indicated that these records are

maintained in the ordinary course of business and that he is a custodian of records.

       {¶ 27} State’s Ex. 11 was a CD containing a redacted telephone call made from

the jail on the day Williamson was arrested. Vitali did not make the CD, nor did he

personally pull the records from which it was made. He also could not say with certainty

what PIN number had been entered, and did acknowledge that inmates can share

armband numbers, even though they are not supposed to do so. Vitali testified that he

had reviewed the CD and listened to the telephone call. He stated that the content

appeared to be a fair and accurate copy of a Pay Tel download
                                                                                         -11-


      {¶ 28} During a sidebar conference, the State acknowledged that the computer

download does not give the PIN number associated with the account. However, the

State stressed that officers who have access to the system are able to search by inmate

number or PIN number, and that the officers pulled the recording in question from the

phone calls obtained during a search for Williamson’s records.

      {¶ 29} After the defense cross-examined Vitali, the defense again objected to

having the jury hear the recording, because there was nothing to connect the phone call

to Williamson. At this point, the State offered to have Vitali go directly to the jail and

make a new recording, but the defense stated that would not be necessary. In this

context, the following discussion occurred:

             MS. HENNE: If the Court’s inclined not to let it in on the basis that

      they don’t know necessarily that he’s [the defendant’s] the one to do it –

      now, because I’ve had this discussion many times with Sergeant Vitali, that

      they don’t listen to phone calls, that he, himself, because of all the requests,

      doesn’t pull them, we can have a brief recess. He can go directly to the jail

      and make a new disc, and make a new recording and make this recording.

             Again, there’s this one, for evidentiary purposes, just has several

      clips for evidentiary reasons that we’ve redacted part of it. But you can go

      over and do that if that’s –

             MR. CHRISTON: Yeah. No. No. I’m not – see, I’m not – I’m not

      arguing that he go over there and do that. What I’m suggesting is, even if

      he did (indiscernible), so he do that, I’m – I believe that he did that with the

      disc that you sent me.         I believe that.   Okay?    What I’m saying is
                                                                                  -12-


basically, he can’t tell us that this is Mr. Williamson.

       ***

       THE COURT: Do we at least – do we even have it in the record

right now that the defendant was in the jail on the day this – these calls were

made?

       MS. HENNE: We do – * * * because he was arrested on the date

of the incident. At the end of the phone call, had the same date of the

incident.

       MR. CHRISTON: (Indiscernible) we will concede that he was in jail.

       THE COURT: You agree (indiscernible)?

       MR. CHRISTON: Yeah, yeah.

       THE COURT: All right. He was in the jail. We’ve got evidence

that was made from a jail call that came to the jail.

       MR. CHRISTON: No. That – that went out.

       MS. HENNE: Went out.

       MR. CHRISTON: Yeah, yeah.

       MS. HENNE: By an inmate.

       MR. CHRISTON: By an inmate.

       MS. HENNE: Again, it goes –

       THE COURT:         And you’ve had this disc?        It was provided in

discovery and you’ve been able to listen to it?

       ***

       MR. CHRISTON: I have – I have all of them, about 27.
                                                                                         -13-


              MS. HENNE: He has all of the phone calls.

              ***

              MS. HENNE: This is just one of them.

              MR. CHRISTON: Yeah. Yeah.

              THE COURT: Overrule the objection.

Transcript of Proceedings, Vol. II, pp. 316-318.

       {¶ 30} The recording was then played for the jury. After considering the record,

we conclude that the trial court did not err in allowing the CD to be played. As an initial

matter, while testimony from the jail employee who conducted the initial search for phone

calls may have been preferable for purposes of definitively connecting the call to

Williamson’s PIN number, we conclude that Williamson waived any objection in this

regard. Specifically, the State offered to take a recess and have Vitali conduct a new

search, but Williamson declined the offer. If Williamson were truly concerned about this

point, he would have asked the State to do what it suggested. When waiver occurs, error

will be considered only on the basis of plain error. See, e.g., State v. Cephus, 161 Ohio

App.3d 385, 2005-Ohio-2752, 830 N.E.2d 433, ¶ 34 (2d Dist.). “Plain error does not exist

unless it can be said that but for the error, the outcome of the trial would clearly have

been different.” Id., citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1979).

       {¶ 31} Taking the remaining evidence into consideration, we conclude that neither

plain error nor any error occurred. Specifically, the threshold test of authentication was

met, and the jury could decide the weight to give the phone call. See State v. Harmon,

2d Dist. Clark No. 2932, 1993 WL 55967, *4 (Mar. 2, 1993) (jury decides “how authentic

an item of evidence is, and * * * [gives] it weight accordingly”); State v. Isley, 9th Dist.
                                                                                          -14-


Summit No. 17485, 1996 WL 351154, *2 (June 26, 1996) (once judge decides “ ‘threshold

test of authentication has been met and submits the evidence to the jury, the jury may

reject the authenticity of the evidence’ ”); State v. Taylor, 2d Dist. Miami No. 2005 CA 44,

2006-Ohio-6813, ¶ 30 (once court decides to admit evidence, weight to be given is for

trier of fact).

        {¶ 32} As was noted, the threshold for authenticating evidence is low and only

requires “sufficient foundational evidence * * *.” (Citation omitted). State v. Young, 2d

Dist. Montgomery No. 18874, 2002 WL 471846, *2 (Mar. 29, 2002). See also State v.

Moore, 2015-Ohio-1327, 30 N.E.3d 988, ¶ 18 (2d Dist.).

        {¶ 33} The telephone call itself was made from the jail during the late afternoon of

September 18, 2015 (the date of the crime and arrest), and Williamson did not dispute

that he was in jail at the time. In addition, the caller stated that he was being charged

with an “F2 possession,” which was one of Williamson’s charges. The caller’s other

statements were also consistent with the testimony of Detective Phillips. Specifically,

the caller stated that “they” had gotten the car, that he was not with anyone else, that

“they” did not get him out of the car or pull him over or anything like that, and that he had

broken the phone. While it is theoretically possible that another jail inmate could have

encountered these similar circumstances on the same date, it is highly improbable,

particularly when one considers the reference to a broken phone.

        {¶ 34} Finally, even if we considered the admission of the phone call as error, we

cannot say the outcome of the trial would have been different.          In Long, the court

stressed that “[n]otice of plain error under Crim.R. 52(B) is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of
                                                                                         -15-

justice.” Long, 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus.

This is not such a case.

       {¶ 35} The only argument Williamson makes in this regard is that no physical

evidence connected him to the crime; instead, the only evidence was Detective Phillips’

testimony that he could identify Williamson as the driver after seeing him in a vehicle with

tinted windows for less than three seconds.

       {¶ 36} The evidence presented at trial, physical or otherwise, was as follows: (1)

Phillips’ testimony about his observations; (2) Deputy Sergeant Vitali’s testimony about

the jail calls; and (3) a forensic scientist’s testimony about the drugs found in the car.

The two latter testimonies are irrelevant to this analysis.

       {¶ 37} Phillips testified that when the Chrysler 300 turned and traveled past him,

he noted the driver’s physical description, which included spiked dreadlocks about the

size of pencils sticking up from the driver’s head. Although Phillips had a fairly brief look

at the driver, he stressed that he was able to see the driver’s face and hair.

       {¶ 38} From that point on, until the Chrysler 300 pulled into the driveway, the

Chrysler was out of Phillips’ sight for about five seconds, when Williamson turned left onto

Malden, and Phillips made a U-turn to follow it. When the police officers arrived at the

Malden residence, the Chrysler was in the driveway, still running. After going to the side

of the house, Phillips saw a man exiting through a window and immediately recognized

the man as the one he had seen driving the car. Phillips stated that he was 100% certain

about his identification.

       {¶ 39} At the time of Williamson’s arrest, only one other person (Clemons) was

inside the house, and his physical appearance was quite unlike that of Williamson. In
                                                                                          -16-

particular, Clemons had very short hair. Compare State’s Ex. 7 with State’s Ex. 8.

         {¶ 40} Furthermore, the fact that Williamson attempted to exit the house from a

window rather than a door was not normal behavior, but indicates that he was attempting

to conceal his presence and flee.       The Supreme Court of Ohio has said that “an

accused's ‘ “flight, escape from custody, resistance to arrest, concealment, assumption

of a false name, and related conduct, are admissible as evidence of consciousness of

guilt, and thus of guilt itself.” ’ ” State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840

N.E.2d 151, ¶ 167, quoting State v. Eaton, 19 Ohio St.2d 145, 160, 249 N.E.2d 897

(1969). (Other citations omitted.)

         {¶ 41} It is true that the Chrysler’s window were tinted. We have reviewed the

pictures and there is a tint on the front window. It is impossible to determine whether the

pictures were taken during similar conditions as those on the day of the accident; more

importantly, the picture was not taken with an individual inside the vehicle.

         {¶ 42} During the trial, Detective Phillips was questioned about the tint, and was

shown pictures. Phillips stated that while the tint on the front window appeared to be

dark, it did not look the same as the tint on the other windows. He stated that he could

see the plastic molding on the windshield through the window. In addition, he insisted

that he could clearly see an individual in the car on the day of the incident, and that the

picture shown at trial was not an accurate representation of what he saw the day of the

crime.

         {¶ 43} The Supreme Court of Ohio has said that “the weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of the facts.” State

v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
                                                                                          -17-


The jury could have chosen to disbelieve Detective Phillips, but it did not. We defer to

the jury’s credibility determinations, and this is not the exceptional case that merits

reversal based on plain error. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997

WL 476684, *4 (Aug. 22, 1997).

       {¶ 44} Accordingly, the First Assignment of Error is overruled.



                   III. Is the Conviction Supported by Sufficient Evidence or is

                   the Conviction Against the Manifest Weight of the Evidence?

       {¶ 45} Williamson’s Second Assignment of Error states that:

               There Was Insufficient Evidence to Sustain the Conviction for

       Possession of Heroin or Cocaine Because the State Failed to Put Forth

       Evidence of Possession and the Verdict Was Against the Manifest Weight

       of the Evidence.

       {¶ 46} Under this assignment of error, Williamson contends that the judgment is

supported by insufficient evidence or is against the manifest weight of the evidence. In

support of this argument, Williamson points to several factors, including Detective Phillips’

short length of time to observe the driver, while Phillips’ attention was divided; the fact

that Phillips lost sight of the car several times and did not see Williamson exit the car; the

lack of DNA or fingerprint evidence connecting Williamson with the car; the fact that no

drugs or weapons were found on Williamson’s person; the lack of testimony from the

occupants of the other vehicle; and the fact that Clemons (the other person in the house)

did not testify.

       {¶ 47} “A sufficiency-of-the-evidence argument challenges whether the state has
                                                                                         -18-


presented adequate evidence on each element of the offense to allow the case to go to

the jury or to sustain the verdict as a matter of law.” State v. Cherry, 171 Ohio App.3d

375, 2007-Ohio-2133, 870 N.E.2d 808, ¶ 9 (2d Dist.), citing State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997). “ ‘An appellate court's function when reviewing

the sufficiency of the evidence to support a criminal conviction is to examine 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. The relevant inquiry

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.’ ” Cherry at ¶ 9, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 48} However, “[w]hen a conviction is challenged on appeal as being against the

weight of the evidence, an appellate court must review the entire record, weigh the

evidence and all reasonable inferences, consider witness credibility, and determine

whether, in resolving conflicts in the evidence, 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.’ ” State v. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717,

2013 WL 784643, ¶ 8, quoting Thompkins at 387. “A judgment should be reversed as

being against the manifest weight of the evidence ‘only 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).

       {¶ 49} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
                                                                                          -19-


a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” (Citation omitted.) State v. McCrary, 10th Dist. Franklin No.

10AP-881, 2011-Ohio-3161, ¶ 11. As a result, “a determination that a conviction is

supported by the weight of the evidence will also be dispositive of the issue of sufficiency.”

(Citations omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198,

¶ 15. Accord State v. Baum, 2d Dist. Montgomery No. 27190, 2017-Ohio-981, ¶ 14.

       {¶ 50} After reviewing the record, we again conclude that this is not the exceptional

case in which the trier of fact clearly lost its way and created a miscarriage of justice. As

was noted, Detective Philipps was able to get a good look at the driver, who sported a

distinctive hair style. Phillips also immediately recognized Williamson as the man he had

seen driving, and was 100% certain of his identification.

       {¶ 51} The only time the car was actually out of Phillips’ sight was when it turned

left onto Malden, and the reality is that Phillips followed the car directly from the drug

hand-off to the Malden residence – a distance of only a few blocks. While Phillips did

not see Williamson get out of the car, a very short period of time elapsed between when

the car turned into the driveway and when Phillips saw Williamson exiting the house

through a window. Phillips indicated that the total time was less than a minute.

       {¶ 52} Although Williamson challenges Phillips’ testimony by claiming that he was

distracted and could not properly see through the Chrysler’s heavily tinted windows, “the

weight to be given the evidence and the credibility of the witnesses are primarily for the

trier of the facts.” DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, at paragraph one of the

syllabus. We have stressed that “[b]ecause the factfinder * * * has the opportunity to see

and hear the witnesses, the cautious exercise of the discretionary power of a court of
                                                                                         -20-


appeals to find that a judgment is against the manifest weight of the evidence requires

that substantial deference be extended to the factfinder's determinations of credibility.

The decision whether, and to what extent, to credit the testimony of particular witnesses

is within the peculiar competence of the factfinder, who has seen and heard the witness.”

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, at *4.

      {¶ 53} At trial, Phillips stated that he was able to see through the front window of

the car, which was less tinted than the other car windows. As was noted, Phillips also

said that pictures of the window tint the defense presented were not an accurate

representation of what he saw the day of the arrest. The jury was able to hear the

testimony and view the pictures, and clearly believed Phillips.       Again, we give this

decision substantial deference.

      {¶ 54} Moreover, the fact that Williamson did not have actual possession of the

drugs at the time of his arrest is irrelevant. The possession of cocaine and heroin

charges were both alleged to be violations of 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.” R.C. 2901.22(B) defines “knowingly as follows:

      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.

      {¶ 55} “Possession” is defined as “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.
                                                                                       -21-


2925.01(K).

      {¶ 56} We have often said that drugs may be actually or constructively possessed.

See, e.g., State v. Mabry, 2d Dist. Montgomery No. 21569, 2007-Ohio-1895, ¶ 18.

(Citation omitted.)   “Constructive possession exists when an individual knowingly

exercises dominion and control over an object, even though that object may not be within

his immediate physical possession.” (Citation omitted.) State v. Hankerson, 70 Ohio

St.2d 87, 434 N.E.2d 1362 (1982), syllabus.

      {¶ 57} “Whether a person * * * knowingly possessed * * * a controlled substance is

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

Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998).                     Furthermore,

“[c]ircumstantial evidence and direct evidence inherently possess the same probative

value * * *.” Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph one of the syllabus.

      {¶ 58} As a result, the State did not have to prove that Williamson had actual

possession of the drugs; it could rely on circumstantial evidence and constructive

possession. The facts and circumstances of the case indicate that Detective Phillips saw

Williamson driving the Chrysler 300 and engaging in what appeared to be a drug

transaction.   After Williamson was apprehended, the officers discovered the bag of

heroin capsules sitting on the passenger seat of the car, and an additional baggie of

cocaine in the middle console of the car, in the ashtray, just below the radio. Both items

would have been easily accessible to the driver. Consequently, ample evidence existed

from which a jury could conclude that Phillips knowingly had possession of the heroin and

cocaine.

      {¶ 59} Because the judgment was not against the manifest weight of the evidence,
                                                                                           -22-


it was also supported by sufficient evidence. Accordingly, the Second Assignment of

Error is overruled.



               IV. Did the Trial Court Err in Overruling the Motion to Suppress?

       {¶ 60} Williamson’s Third Assignment of Error states that:

              The Trial Court Erred When It Denied Appellant’s Motion to Suppress

       as There Was No Probable Cause to Arrest the Defendant

       {¶ 61} Under this assignment of error, Williamson contends that the trial court

erred in overruling his motion to suppress. According to Williamson, the police had no

probable cause to arrest and search him because Detective Phillips did not recognize

Williamson (as a known criminal) when he first saw him, and because Phillips lost sight

of Williamson briefly.

       {¶ 62} The trial court rejected Williamson’s motion, first, because the police had a

reasonable, articulable suspicion for detaining Williamson.             However, the court

concluded that this was academic, because Williamson failed to claim what evidence

should be suppressed as a result of an alleged illegal search of his person. In addition,

the court found that Williamson had no expectation of privacy concerning the Chrysler

300, because Williamson indicated that he did not own the car, did not have permission

to use it, did not operate it, and did not use it in the sense of placing any tangible items in

the car.

       {¶ 63} When a trial court rules on a motion to suppress, it “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.” (Citation omitted.) State v. Retherford, 93 Ohio App.3d
                                                                                          -23-


586, 592, 639 N.E.2d 498 (2d Dist.1994). Thus, when we review suppression decisions,

we must “accept the trial court's findings of fact if they are supported by competent,

credible evidence.”    Id.    “Accepting those facts as true, we must independently

determine as a matter of law, without deference to the trial court's conclusion, whether

they meet the applicable legal standard.” Id.

       {¶ 64} “The Fourth and Fourteenth Amendments to the United States Constitution

prohibit any governmental search or seizure, including a brief investigative stop, unless

supported by an objective justification.” (Citations omitted.) State v. Andrews, 57 Ohio

St.3d 86, 87, 565 N.E.2d 1271 (1991).

       {¶ 65} “It is well established that the police may stop and briefly detain people for

investigative purposes based on a reasonable suspicion of criminal activity.” State v.

McKee, 2d Dist. Montgomery No. 22565, 2008-Ohio-5464, ¶ 11, citing Terry v. Ohio, 392

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Reasonable suspicion entails some

minimal level of objective justification for making a stop – that is, something more than an

inchoate and unparticularized suspicion or ‘hunch,’ but less than the level of suspicion

required for probable cause.” State v. Jones, 70 Ohio App.3d 554, 556–57, 591 N.E.2d

810 (2d Dist.1990), citing Terry at 27.

       {¶ 66} This particularized suspicion “must be based on the entire picture – a totality

of the surrounding circumstances.” Andrews at 87, citing United States v. Cortez, 449

U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). (Other citations omitted.) It

is also “viewed through the eyes of the reasonable and prudent police officer on the scene

who must react to events as they unfold.”        (Citations omitted.)   Andrews at 87-88.

When we review an officer’s actions, we “must give due weight to [the officer’s] experience
                                                                                            -24-


and training and view the evidence as it would be understood by those in law

enforcement.” Id. at 88, citing Cortez.

       {¶ 67} As was noted, Detective Phillips was assigned to the narcotics bureau and

had been working in the geographical area of the arrest for a long time.                At the

suppression hearing, Phillips testified that he had extensive experience in narcotics

investigations, and that in the particular area where he was working that day, car-to-car

drug sales were common. The area was an extremely high-crime area, known for drive-

by shootings and a great deal of narcotics crime.

       {¶ 68} Commonly, drug buyers park on the side of the street in front of vacant lots

or boarded-up houses. Drug dealers are generally mobile, and pull up next to the buyer,

where a very quick hand-to-hand transaction occurs, typically out of windows.                In

addition, drug dealers will drive up on the opposite side of the street from where a buyer

is located; after a transaction is completed, both vehicles travel off in different directions.

       {¶ 69} This is exactly what occurred on September 18, 2015. The red pickup

truck stopped in front of a vacant lot, and the Chrysler 300 then drove up less than a

minute later, traveling in the opposite direction from the pickup truck. The Chrysler then

stopped so that the driver’s side windows were next to each other. At that point, Phillips

saw hands from each vehicle reach out toward each other, close enough to meet. The

drivers then drove off in separate directions. Based on his experience, Phillips believed

he had just seen a hand-to-hand drug transaction, and elected to follow the Chrysler.

Phillips also indicated that he intended to have the Chrysler stopped for illegal window

tint, but had to have a uniformed officer conduct the stop because he was in an unmarked

vehicle. Before that could occur, the Chrysler pulled into the residence on Malden.
                                                                                          -25-


       {¶ 70} The rest of Phillips’ testimony at the suppression hearing was essentially

the same as what he testified to at trial, including arriving at the house where the Chrysler

had been left running, discovering Williamson attempting to flee from the window of the

house, and recognizing Williamson as the person he had seen driving the car. In view

of these circumstances, Phillips certainly had justification to stop and detain Williamson.

We agree with the trial court that this analysis is essentially an academic exercise,

because the police did not discover any drugs or weapons at that time, nor did Williamson

make any statements to the police. In fact, he even refused to answer a question from

the police about whether anyone else was in the house.

       {¶ 71} Regarding the search of the car, we note that warrantless searches are

“ ‘per se unreasonable, under the Fourth Amendment-subject only to a few specifically

established and well-delineated exceptions.’ ” State v. Welch, 18 Ohio St.3d 88, 91, 480

N.E.2d 384 (1985), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967).     One such exception is for automobiles, and provides that “a

warrantless search of an automobile stopped by police officers who had probable cause

to believe the vehicle contained contraband [is] not unreasonable within the meaning of

the Fourth Amendment.” Welch at 91, citing Carroll v. United States, 267 U.S. 132, 45

S.Ct. 280, 69 L.Ed. 543 (1925).

       {¶ 72} In such situations, however, an individual must have a “legitimate

expectation of privacy” in an automobile or certain areas of an automobile. Rakas v.

Illinois, 439 U.S. 128, 148-149, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). “A person who is

aggrieved by an illegal search and seizure only through the introduction of damaging

evidence secured by a search of a third person's premises or property has not had any
                                                                                          -26-

of his Fourth Amendment rights infringed.” (Citation omitted.) Id. at 134. For example,

where a person has asserted neither property interests nor possessory interests in an

automobile, no Fourth Amendment right exists. Id. at 148. Accord State v. Tibbetts, 92

Ohio St.3d 146, 165, 749 N.E.2d 226 (2001) (concluding the defendant had “no

cognizable Fourth Amendment challenge” to search of an automobile, where he had no

possessory interest in the car, did not own the car, did not have permission to drive the

car, and did not claim any property or possessory interest in the vehicle’s contents).

       {¶ 73} To decide if “a defendant has a reasonable expectation of privacy,” the court

must first decide “whether ‘the individual manifested a subjective expectation of privacy

in the object of the challenged search.’ ” State v. Emerson, 134 Ohio St.3d 191, 2012-

Ohio-5047, 981 N.E.2d 787, ¶ 16, quoting California v. Ciraolo, 476 U.S. 207, 211, 106

S.Ct. 1809, 90 L.Ed.2d 210 (1986). (Other citation omitted.) “Then, a court must decide

whether society is willing to recognize that expectation as reasonable.” Id. The person

who challenges a search’s legality has the burden of proving that his or her “own Fourth

Amendment rights were violated by the challenged search or seizure.”               (Citations

omitted.) Rakas at 132, fn. 1; Emerson at ¶ 17.

       {¶ 74} During the suppression hearing, Williamson specifically disclaimed a

possessory interest in the Chrysler 300. See Transcript of Proceedings, Vol. I, pp. 10-

11.   His counsel also stated that Williamson did not have permission to drive the

automobile or to place items in the vehicle. Id. at p. 12. Finally, Williamson’s counsel

stated that “there’s nothing in that car, including the drugs, that belongs to my client, Your

Honor.”   Id.   Consistent with the decision in Tibbets, Williamson had “no legitimate

expectation of privacy in [the car or its contents] and thus no cognizable Fourth
                                                                                      -27-

Amendment challenge to the officers' search.” Tibbetts at 165, citing Rakas at 148.

(Other citation omitted.)

       {¶ 75} Based on the preceding discussion, we conclude that the trial court did not

err in overruling Williamson’s motion to suppress evidence.      Accordingly, the Third

Assignment of Error is overruled.



                                           V. Conclusion

       {¶ 76} All of Williamson’s assignments of error having been overruled, the

judgment of the trial court is affirmed.



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



DONOVAN, J. and FROELICH, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Lynne R. Nothstine
Andrew T. French
Christopher A. Deal
Hon. Timothy N. O’Connell
