[Cite as State v. Doyle, 2011-Ohio-4816.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95957




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   RICHARD DOYLE
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-534657

        BEFORE:            Rocco, J., Stewart, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: September 22, 2011

                                               -i-
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ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Louis J. Brodnik
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} Defendant-appellant Richard Doyle appeals from his convictions

for drug trafficking, drug possession,1 and possession of criminal tools.

      {¶ 2} Doyle presents two assignments of error.            He claims his

convictions are unsupported by either sufficient evidence or the manifest

weight of the evidence.




      1Doyle’s convictions for drug possession were “merged” into his trafficking
convictions pursuant to R.C. 2941.25(A).
                                      3

      {¶ 3} Upon a review of the record, this court cannot agree.    Therefore,

his convictions are affirmed.

      {¶ 4} Doyle’s convictions resulted from a shooting incident that

occurred on the night of February 23, 2010. While Virginia Journee and her

daughter Brijae were watching television in the living room in Euclid, Ohio, a

bullet came through the window and struck the couch where Brijae was

seated. Virginia called the police; she also called her older daughter, Brittni,

to check on her welfare.

      {¶ 5} After learning of the incident, Brittni indicated to Euclid police

detectives that she believed she knew the perpetrator.           She told the

detectives that Doyle may have committed the shooting.

      {¶ 6} Brittni based her surmise on three facts.      She had purchased

marijuana from Doyle on numerous occasions. The previous time she was in

Doyle’s company, he accused her of stealing some marijuana from his vehicle,

so he was angry with her. On the night of the shooting, she received several

text messages on her cell phone from Doyle; in which he sounded threatening

and later seemed to know that the shooting had taken place.

      {¶ 7} Upon obtaining this information, the Euclid police detectives

obtained a warrant to search Doyle’s home for evidence of the shooting.
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They executed the warrant later that same day at Doyle’s home on Bernard

Avenue in Cleveland.

      {¶ 8} Doyle lived in the downstairs unit of a duplex with his girlfriend,

Dominique Hubbard, and her three young children.         In searching Doyle’s

home, Det. David Carpenter made the following discoveries.

      {¶ 9} In the master bedroom, the top dresser drawer held a child’s shoe

box that contained “marijuana packaged for resale, a digital scale, and

approximately 140-some odd dollars and two boxes of sandwich bags * * * .”2

      {¶ 10} In the basement, behind a black garbage bag placed inside the

wall opening where the pipes were located, “tucked in the rafters above the

washer/dryer [set for] the downstairs unit,” Carpenter found “two Mason jars;

one of them with marijuana residue, one of them full of raw marijuana, and

also a bag with a large quantity of crack cocaine, almost like * * * a cookie”

that was not yet “broken up into rocks.”

      {¶ 11} In the kitchen, under the sink, plastic grocery bags concealed a

six-count box of Mason jars, with two of the jars missing. Under the box,

Carpenter found a “small cocaine press.”

      {¶ 12} The Cuyahoga County Grand Jury subsequently indicted Doyle

on eleven counts.      The first six pertained to the shooting incident; since


      2Quotes   indicate testimony given at trial.
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Doyle ultimately was acquitted of these charges, they are not the subject of

this appeal.

      {¶ 13} In Counts 7 and 9, Doyle was charged with trafficking in

marijuana and crack cocaine. He was charged with possession of marijuana

and crack cocaine in Counts 8 and 10, and with possessing criminal tools in

Count 11.

      {¶ 14} After the state presented its case-in-chief, the trial court denied

Doyle’s Crim.R. 29 motion for acquittal. 3       Doyle then testified in his own

behalf and presented Hubbard’s testimony.

      {¶ 15} The jury subsequently found Doyle guilty of Counts 7 through 11.

 At sentencing, the trial court merged Count 8 into Count 7 and Count 10

into Count 9, then sentenced Doyle to concurrent terms of four years on

Counts 7 and 9 and six months on Count 11.

      {¶ 16} Doyle appeals from his convictions; he presents the following two

assignments of error, which are set forth verbatim.

      {¶ 17} “I.   The evidence was insufficient as a matter of law to

support a finding beyond a reasonable doubt that appellant was




      3The   record reflects Doyle failed to renew his motion at the close of all the
evidence.
                                     6

guilty of drug possession, possessing criminal tools, and drug

trafficking.

      {¶ 18} “II.    Appellant’s    convictions     for   drug    possession,

possessing criminal tools, having a weapon while under disability,

carrying a concealed weapon, and drug trafficking were against the

manifest weight of the evidence.”

      {¶ 19} Doyle argues his convictions are supported by neither sufficient

evidence nor the manifest weight of the evidence. This court disagrees.

      {¶ 20} With respect to a challenge to the sufficiency of the evidence to

support a conviction, the appellate court reviews the record to determine

“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.” State v. Leonard, 104 Ohio

St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶77, quoting State v. Jenks (1991),

61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. See, also,

State v. Martin (1983), 20 Ohio App.3d 172, 485 N.E.2d 717.

      {¶ 21} In reviewing a claim challenging the manifest weight of the

evidence, “[t]he question to be answered is whether there is substantial

evidence upon which a jury could reasonably conclude that all the elements

have been proved beyond a reasonable doubt. In conducting this review, [the
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appellate court] must examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine

whether the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.”

(Internal quotes and citations omitted.) Leonard at ¶81. This court must be

mindful, however, that the weight of the evidence and the credibility of the

witnesses are matters primarily for the trier of fact. State v. DeHass (1967),

10 Ohio St.2d 230, paragraph one of the syllabus.

      {¶ 22} Doyle was convicted of trafficking in and possession of cocaine

and marijuana, and possession of criminal tools.4 As to each, Doyle argues

that the evidence was inadequate as a matter of law to prove that he

“possessed” the items of contraband police found inside his home.

      {¶ 23} R.C. 2925.01(K) defines possession as, “ * * * having control over

a thing or substance,” but possession “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 can be

actual or constructive. State v. Wolery (1976), 46 Ohio St.2d 316, 329, 348

N.E.2d 351; State v. Haynes (1971), 25 Ohio St.2d 264, 267, 267 N.E.2d 787.


      4Despite  the phraseology of Doyle’s second assignment of error, he was not
convicted of having a weapon while under disability, and was not even charged with
carrying a concealed weapon.
                                     8

      {¶ 24} Actual possession entails ownership or physical control, whereas

constructive possession is defined as knowingly exercising dominion and

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

immediate physical possession. State v. Hankerson (1982), 70 Ohio St.2d 87,

91, 434 N.E.2d 1362. In this case, since the items of contraband were found

inside Doyle’s home but not actually on his person, the state had to prove that

he constructively possessed them.

      {¶ 25} The   state   may   show   dominion    and   control   solely   by

circumstantial evidence. State v. Trembly (2000), 137 Ohio App.3d 134, 141,

738 N.E.2d 93. Circumstantial evidence possesses the same probative value

as direct evidence as far as the jury’s fact-finding function is concerned.

Jenks.

      {¶ 26} In this case, sufficient evidence supported each of Doyle’s

convictions. Brittni testified she bought marijuana from Doyle. Moreover,

in executing the search warrant for Doyle’s home, Carpenter found “maybe

11” small packages of marijuana inside Doyle’s dresser drawer.

      {¶ 27} Carpenter also found there “two boxes of Good Sense sandwich

bags” and a digital scale. Carpenter testified that, in his experience as a

detective, “where you find drugs packaged for resale, often times you find

packaging material close by,” so “it’s not unusual to find sandwich bags in
                                       9

someone’s dresser drawer or closet nearby when they’re engaging in drug

trafficking.”

      {¶ 28} In the portion of the basement set aside for the duplex’s

downstairs unit, hidden “in the rafters” behind a black trash bag, Carpenter

found a bulk amount of marijuana in a Mason jar; he stated that the type of

marijuana the jar contained seemed to him the same as what was inside the

smaller bags in the dresser.     Carpenter testified that, when he observed

Doyle taking the trash out to the curb before the police executed the search

warrant, Doyle was carrying the same kind of black trash bag that concealed

the drugs.

      {¶ 29} In the same location as the jar of marijuana, moreover, Carpenter

also found a plastic bag that contained a “cookie” of crack cocaine. Carpenter

explained that, typically, this “size of crack” would be “broken up into rocks

      {¶ 30} * * * for street sale.”         Upstairs, under the kitchen sink,

Carpenter saw a “cocaine press.” He testified that this item “enables a drug

dealer to take a smaller quantity of cocaine, say an ounce, and double or

triple the amount of cocaine that he has by adding a cutting agent to it * * * .”

      {¶ 31} Without objection, Carpenter estimated the value of the drugs he

found in Doyle’s home. The amount of marijuana was worth “roughly $750,”

while the crack cocaine had a “ballpark $4,000 bulk price.”
                                      10

      {¶ 32} Viewing the evidence presented by the state in a light most

favorable to the prosecution, the jury could conclude the state proved each of

the elements of the offenses with which Doyle was charged. State v. Hall,

Cuyahoga App. No. 91786, 2009-Ohio-3287; State v. Santiago, Cuyahoga App.

No. 95333, 2011-Ohio-1691. Sufficient evidence, therefore, supported Doyle’s

convictions.

      {¶ 33} Adding to the state’s evidence, Doyle admitted on direct

examination that he used marijuana to ease his leg pain, and that he “was

selling weed a little — well, a little bit.” Hubbard acknowledged she knew

Doyle kept marijuana in the drawer.

      {¶ 34} On the other hand, Doyle denied either knowing about the

existence of the crack cocaine or engaging in the sale of crack cocaine. He

admitted he knew the cocaine press was under the kitchen sink, but claimed

he “didn’t know what it was.”

      {¶ 35} The jury was in the best position to evaluate Doyle’s credibility

with respect to the charges against him. In light of the jury’s determination

that Doyle was not guilty of the counts relating to the shooting incident, this

court cannot find the jury lost its way in finding him guilty of the

drug-related offenses.   Hall; Santiago; see, also, State v. Davis, Cuyahoga
                                     11

App. No. 86114, 2005-Ohio-6721.       Doyle’s convictions, therefore, are not

against the manifest weight of the evidence.

      {¶ 36} Accordingly, Doyle’s assignments of error are overruled.

      {¶ 37} His convictions are 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

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

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

Rule 27 of the Rules of Appellate Procedure.



____________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
