[Cite as State v. Wiley, 2019-Ohio-3092.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 107417
                 v.                               :

DEONTYE WILEY,                                    :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 1, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-625495-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Caitlin E. Monter, Assistant Prosecuting
                 Attorney, for appellee.

                 Stephen L. Miles, for appellant.


PATRICIA ANN BLACKMON, P.J.:

                   Deontye Wiley (“Wiley”) appeals from his convictions for drug

trafficking, drug possession, and having weapons while under disability, as well as

his four-year prison sentence. Wiley assigns the following errors for our review:
      I.     The trial court violated his double jeopardy rights by enhancing
             the weapons while under disability offense with a firearm
             specification.

      II.    The evidence was insufficient to support the convictions for drug
             trafficking, drug possession, and having weapon[s] while under
             disability.

               Having reviewed the record and pertinent law, we affirm the trial

court’s judgment. The apposite facts follow.

               Following complaints of drug activity and gun shots at 3213 Tate

Avenue in Cleveland, Ohio, police began an investigation. Surveillance revealed

numerous people entering and leaving the house, consistent with drug activity.

After conducting a controlled drug buy at that address, police obtained a warrant to

search the premises, which was executed in the early morning hours of January 26,

2018. Wiley was found alone upstairs in the home. Both police and Ohio Adult

Parole Authority databases indicated that Wiley resided at that address. No lights

were on in the house, although a television was on in one of the upstairs bedrooms.

               Officers collected evidence forming the basis of Wiley’s convictions

from one of two adjoining rooms upstairs in the house: the previously mentioned

bedroom with the television and the room adjacent to it, which is connected by a

doorway. A detective described them as being set up as a “little efficiency.” The first

room contained a table, a microwave, and running water.            The second room

contained a bed, a dresser, a television, and a bookshelf. Although both rooms had

doors that lead to the hallway, the bedroom door was blocked by the bookshelf,

rendering the bedroom accessible only by way of the first room.
               The search of the first room revealed several items described as being

used in the manufacturing of crack cocaine: a beaker, a plastic lid, and some spoons,

all of which tested positive for cocaine residue. Officers found plastic sandwich bags

that they explained are used as drug packaging. Police also found a crack pipe in a

plastic container.

               In the bedroom, police discovered a bag of marijuana,1 multiple scales

that tested positive for cocaine and marijuana residue, five cell phones, and several

rounds of 9 mm ammunition, including one spent bullet casing. On the dresser,

police discovered three documents all bearing Wiley’s name: a traffic citation, a

booking sheet, and a document related to a municipal court case. Between the

dresser and the bed, police found a locked safe. After opening the safe, officers

discovered an operable, loaded 9 mm pistol, as well as crack cocaine and several

packs of Newport cigarettes. One of the investigating detectives testified as to his

conclusion that Wiley stayed in this bedroom and that he found no indication that

anybody else stayed in it.

               While police were conducting the search, Wiley admitted to them that

he “messed around” with marijuana and cocaine. Although police found no drugs

on his person, Wiley had $471 in his pocket, which, a detective explained, was an

amount of money indicative of drug sales.         Wiley further admitted that the

marijuana that officers found in the bedroom was his: “I’m going to be real with you,



      1  Wiley was not charged with possession of the marijuana. The possession charge
in this case relates to crack cocaine.
that’s my bud. I was smoking it.” He also told the officers that he “mess[es] around

with cocaine.” Moreover, Wiley admitted that he smoked Newport cigarettes, the

same brand found in the safe.

                          Sufficiency of the Evidence

               Wiley argues that there was insufficient evidence for conviction. He

claims that there was no evidence that linked him to the drugs or the firearm found

in the safe and that there was no evidence that established that he sold drugs or

prepared drugs for sale. We disagree.

               A challenge to the sufficiency of the evidence supporting a conviction

requires this court to determine whether the state met its burden of production.

State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v.

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). When reviewing for

sufficiency of the evidence, this court must 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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. In a sufficiency inquiry, this court does not assess whether the state’s

evidence is to be believed but instead whether, if believed, the evidence admitted at

trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-

Ohio-3375, ¶ 25, citing Thompkins at 387; Jenks at paragraph two of the syllabus.
              R.C. 2925.03(A) proscribes drug trafficking and in relevant part

provides:

      No person shall knowingly * * * [p]repare for shipment, ship, transport,
      deliver, prepare for distribution, or distribute a controlled substance
      * * * when the offender knows or has reasonable cause to believe that
      the controlled substance * * * is intended for sale or resale by the
      offender or another person.

              R.C. 2901.22(B) defines the culpable mental state of “knowingly” and

relevantly provides:

      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. 2925.11(A) proscribes drug possession and in relevant part

provides:

      No person shall knowingly obtain, possess, or use a controlled
      substance * * *.

              “‘Possess’ or ‘possession’ means having control over a thing or

substance, but may not be inferred solely from the 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). Possession may be actual or constructive.

State v. Driggins, 8th Dist. Cuyahoga No. 74940, 1999 Ohio App.LEXIS 5676

(Dec. 2, 1999), citing State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d 787 (1971); see

also State v. Butler, 42 Ohio St.3d 174, 176, 538 N.E.2d 98 (1989) (“[t]o constitute

possession, it is sufficient that the defendant has constructive possession, meaning

immediate access * * *”).
              “‘Actual possession exists when the circumstances indicate that an

individual has or had an item within his immediate physical possession.’” State v.

Johnson, 8th Dist. Cuyahoga No. 95816, 2011-Ohio-3469, ¶ 11, quoting State v.

Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13 (4th Dist.).

Constructive possession does not require immediate physical possession; it is

established by proof that a person knowingly exercises dominion and control over

the item. State v. Natale, 8th Dist. Cuyahoga No. 95278, 2011-Ohio-3974, ¶ 12; see

also State v. Slade, 145 Ohio App.3d 241, 243, 762 N.E.2d 451 (8th Dist.2001)

(“readily usable drugs in close proximity to an accused may constitute sufficient

circumstantial evidence to support a finding of constructive possession”).

“Knowledge and possession may be constructive in nature and may be proven

entirely through circumstantial evidence.” Natale at ¶ 12, citing State v. Haynes, 25

Ohio St.2d 264, 267 N.E.2d 787 (1971).

      Although a defendant’s mere proximity is in itself insufficient to
      establish constructive possession, proximity to the object may
      constitute some evidence of constructive possession. * * * Thus,
      presence in the vicinity of contraband, coupled with another factor or
      factors probative of dominion or control over the contraband, may
      establish constructive possession.

State v. Chafin, 4th Dist. Scioto No. 16CA3769, 2017-Ohio-7622, ¶ 41, citing

Kingsland.

              In addressing Wiley’s claim that there is no evidence that ties him to

the contents of the locked safe, we find State v. Acevedo, 2016-Ohio-7344, 71 N.E.3d

1281 (9th Dist.), to be instructive. In Acevedo, police found the defendant asleep in
a locked bedroom and in close proximity to a locked safe. Id. at ¶ 9, 20-21. There

was evidence presented that it was the defendant’s bedroom. Id. at ¶ 20. Search of

the room revealed drug paraphernalia, drugs, a firearm, and mail addressed to the

defendant. Although there was no evidence that the defendant was able to open the

safe, the Ninth District nevertheless found sufficient evidence to conclude that he

exercised the requisite dominion and control over its contents to sustain his

conviction for possession of the drugs inside. Id. at ¶ 20.

              Here, the state presented sufficient evidence to establish that Wiley

exercised dominion and control over the drugs and gun in the safe and thus

convicted him of drug possession and having weapons while under disability. There

is ample circumstantial evidence to confirm this conclusion. As mentioned, the

police found Wiley upstairs by himself and the safe was in the bedroom with the

television, located between the bed and the dresser. Police officers testified to the

conclusion that this was Wiley’s bedroom and that there was no indication that it

belonged to, or was occupied by, anyone else. On the dresser next to the safe were

the three documents bearing Wiley’s name. Wiley admitted that the marijuana

found in that bedroom was his and that he was smoking it, and Wiley admitted to

police that he smoked the brand of cigarettes found in the safe. Finally, Wiley was

listed as residing at that address in both police and Ohio Adult Parole Authority

databases. Viewing this evidence in a light most favorable to the prosecution, there

was sufficient evidence presented to convict Wiley of drug possession and having

weapons while under disability.
               The state also presented sufficient evidence to convict Wiley of drug

trafficking. The beaker, plastic lid, spoons, and scales — all with cocaine residue on

them — plastic bags, cell phones, firearm, and money found on Wiley’s person,

constitute sufficient evidence upon which to base his conviction for drug trafficking.

See State v. Townsend, 8th Dist. Cuyahoga No. 107177, 2019-Ohio-544, ¶ 16 (“courts

have consistently found that items such as plastic baggies, wrapping devices, digital

scales, and large sums of money are often used in drug trafficking and may

constitute circumstantial evidence of” drug trafficking). Viewing this evidence in a

light most favorable to the prosecution, there was sufficient evidence presented to

convict Wiley of drug trafficking.

               Accordingly, we overrule Wiley’s second assigned error.

                   Sentencing Under R.C. 2929.14(B)(1)(e)

               Wiley argues that the trial court committed plain error by sentencing

him to one year in prison for the firearm specification as an enhancement to his

three-year prison sentence for having weapons while under disability. According to

Wiley, the one-year firearm specification does not apply to a conviction for having

weapons while under disability unless certain conditions found in R.C.

2929.14(B)(1)(e) are met. Wiley admits, however, that he failed to raise this issue in

the trial court, and our appellate review is limited to plain error.

               “Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” Crim.R. 52(B). “To

prevail [on a plain-error analysis,] appellant must show that an error occurred, that
the error was plain, and that the error affected his substantial rights.” State v. Wilks,

154 Ohio St.3d 359, 2018-Ohio-1562, 14 N.E.3d 1092, ¶ 52. The Ohio Supreme Court

has interpreted “substantial rights” to mean that the “error must have affected the

outcome of the trial” or proceeding. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-

Ohio-68, 759 N.E.2d 1240. “The power afforded to notice plain error, whether on a

court’s own motion or at the request of counsel, is one which courts exercise only in

exceptional circumstances, and exercise cautiously even then.” State v. Long, 53

Ohio St.2d 91, 94, 372 N.E.2d 804 (1978).

               The conditions necessary for a court to sentence a defendant to a

firearm specification for a weapons charge are as follows:

      (i) The offender previously has been convicted of aggravated murder,
      murder, or any felony of the first or second degree.

      (ii) Less than five years have passed since the offender was released
      from prison or post-release control, whichever is later, for the prior
      offense.

R.C. 2929.14(B)(1)(e).

               In the instant case, we find that Wiley has failed to show that the court

committed plain error in sentencing him. This issue was not raised in the trial court,

and Wiley presents no evidence on appeal that the two conditions found in R.C.

2929.14(B)(1)(e) do not apply to him. See State v. Woods, 8th Dist. Cuyahoga No.

106476, 2018-Ohio-4856, ¶ 19 (finding that “[w]ithout sufficient evidence of [the

R.C. 2929.14(B)(1)(e)] factors, [the defendant] cannot show that the outcome of his

sentence would have been different”).
               Assuming, for argument’s sake, that we were to review the merits of

Wiley’s assigned error, we would find that the two statutory conditions at issue apply

to the instant case. According to the record, Wiley was previously convicted of

involuntary manslaughter, which is a second-degree felony. This satisfies the first

subsection of the statute.

               Furthermore, testimony from Wiley’s trial makes it clear that he was

under the supervision of the Adult Parole Authority at the time of the arrest in the

case at hand. Cleveland Police Detective Lawrence Smith testified that he executed

the search on January 26, 2018, at 3213 Tate Avenue, where Wiley was arrested, and

“the Adult Parole Authority had him listed as being released to that home.”

Furthermore, defense counsel conceded on the record several times that Wiley was

“on parole” when he was arrested for the offenses in the case at hand. This satisfies

the second subsection of R.C. 2929.14(B)(1)(e).

               Accordingly, we find no plain error in the court’s sentencing Wiley to

a prison sentence for a firearm specification in connection with a conviction for

having weapons while under disability. Wiley’s first assigned error is overruled.

               Judgment 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
conviction having been affirmed, any bail pending 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.


                                     ___
PATRICIA ANN BLACKMON, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
EILEEN A. GALLAGHER, J., DISSENTS WITH
ATTACHED SEPARATE OPINION



EILEEN A. GALLAGHER, J., DISSENTING:

                I respectfully dissent from the majority with regard to Wiley’s first

assignment of error challenging his sentence as it relates to the one-year firearm

specification attached to the having weapons while under disability count. On the

record before this court, there is no basis to conclude that Wiley both: (1) had a

previous conviction for aggravated murder, murder, or a felony of the first or second

degree, and that (2) less than five years has passed since he was released from prison

or postrelease control for that conviction, as required by R.C. 2929.14(B)(1)(e).

               Pursuant to R.C. 2929.14(B)(1)(e) a trial court may not impose a

prison sentence for a one-year firearm specification for a having weapons while

under disability violation unless both:

               (i) The offender previously has been convicted of aggravated murder,

murder, or any felony of the first or second degree.
               (ii) Less than five years have passed since the offender was released

from prison or post-release control, whichever is later, for the prior offense.

               The record before this court simply fails to establish that Wiley meets

both of these conditions as required by the statute.

               The majority mistakenly concludes that the evidence that Wiley was

under supervision at the time of this case is sufficient to “satisf[y] the second

subsection of R.C. 2929.14(B)(1)(e).” Based on the plain language of the statute,

merely being on postrelease control is not enough.          R.C. 2929.14(B)(1)(e)(ii)

requires that the postrelease control have been imposed “for the prior offense,”

which must have been “aggravated murder, murder, or any felony of the first or

second degree.” Here, even assuming that Wiley was on postrelease control, we

simply do not know if it was imposed for a qualifying offense.

               Although the trial court stated generally that Wiley has a “very

lengthy” criminal history, there is nothing in the record to establish that at the time

of this case that Wiley was under supervision for aggravated murder, murder, or any

felony of the first or second degree. The state included as exhibits journal entries

from Cuyahoga C.P. Nos. CR-01-398446 and CR-14-591330; however, neither of

these entries satisfy R.C. 2929.14(B)(1)(e).

               In CR-01-398446 Wiley pleaded guilty to aggravated robbery, a

felony of the second degree. The journal entry reflects that the court sentenced

Wiley to six years in prison and does not indicate any term of postrelease control as

part of the sentence. Wiley would have completed this sentence in approximately
2007. Although this conviction satisfies subdivision (i) because aggravated robbery

is a second-degree felony, it fails to satisfy subdivision (ii) because it has been greater

than five years since he was released.

               In CR-14-591330 Wiley pleaded guilty to drug possession, a felony of

the fourth degree. The journal entry reflects that the court sentenced Wiley to 18

months in prison to be followed by “up to 3 years” of postrelease control. This

conviction fails to satisfy subdivision (i) because it is a fourth-degree felony.

               For the first time on appeal, the state claims that Wiley has a previous

conviction in a different case that satisfies R.C. 2929.14(B)(1)(e) and it urges us to

consider that case. Despite the state’s assertion that this conviction meets the two

requirements, it provided no basis by which we could conclude as much. It failed to

include the sentencing journal entry as part of the record before the trial court and

further failed to make it part of the record before this court on appeal. If Wiley had

a previous conviction that satisfied both of the criteria required by R.C.

2929.14(B)(1)(e) the state could have easily and conclusively established this. But it

did not.

               I am aware of this court’s decision in State v. Woods, 8th Dist.

Cuyahoga No. 106476, 2018-Ohio-4856, in which the panel declined to find plain

error in a defendant’s challenge to his sentence pursuant to R.C. 2929.14(B)(1)(e)

where the record was devoid of evidence to establish that he was previously

convicted of aggravated murder, murder or any felony of the first or second degree

and how many years had passed since he was released from prison or postrelease
control. Id. at ¶ 19. In that case, the panel found that “[w]ithout sufficient evidence

of these two factors, [the defendant] cannot show that the outcome of his sentence

would have been different.” Id. In so finding, the court essentially puts the burden

on the defendant to prove a negative. I disagree with that analysis.

               Admittedly, R.C. 2929.14(B)(1)(e) does not specify the quantum of

proof required to establish subdivisions (i) and (ii). Nevertheless, the statute does

make it abundantly clear that a court “shall not impose” a prison term “unless” both

subdivisions apply. Id. Because there is no indication here that both of these

subdivisions apply, I would vacate Wiley’s sentence for having weapons while under

disability and the attached firearm specification and remand the case for the limited

purpose of determining whether, at the time of the sentencing, Wiley had a prior

conviction that satisfied R.C. 2929.14(B)(1)(e).
