[Cite as State v. Harris, 2016-Ohio-7097.]




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

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :  C.A. CASE NO. 26810
                                                   :
 v.                                                :  T.C. NO. 14CR3826
                                                   :
 DARREN HARRIS                                     :  (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :
                                              ...........

                                             OPINION

             Rendered on the ___30th___ day of _____September_____, 2016.

                                              ...........

ANN M. GRABER, Atty. Reg. No. 0091731, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ENRIQUE G. RIVERA-CEREZO, Atty. Reg. No. 0085053, 61 N. Dixie Drive, Suite B,
Vandalia, Ohio 45377
     Attorney for Defendant-Appellant

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

FROELICH, J.

        {¶ 1} After a jury trial in the Montgomery County Court of Common Pleas, Darren

Harris was convicted of having weapons while under disability and possession of heroin,

with a firearm specification. The court imposed concurrent sentences of 30 months and

18 months in prison for the offenses, respectively, and one year (12 months) in prison for

the firearm specification, to be served consecutively to and prior to the aggregate 30-
                                                                                           -2-


month sentence. Harris’s total sentence was 42 months in prison.

       {¶ 2} Harris appeals from his conviction, claiming that the trial court erred in

overruling his pretrial motion to suppress, that he received ineffective assistance of

counsel at trial, and that his convictions were based on insufficient evidence and against

the manifest weight of the evidence. For the following reasons, the trial court’s judgment

will be affirmed.

                                  I. Motion to Suppress

       {¶ 3} In ruling on a motion to suppress, the trial court “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.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d

498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, ¶

30. Accordingly, when we review suppression decisions, we must accept the trial court’s

findings of fact if they are supported by competent, credible evidence. Retherford at 592.

“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. We emphasize that, when reviewing suppression rulings, we consider

only the evidence before the trial court at the suppression hearing; we cannot consider

any additional evidence presented at a subsequent trial.

       {¶ 4} At the suppression hearing, Dayton Police Officers Christopher Savage and

Sean Humphrey testified regarding their warrantless entry into an apartment on

Germantown Street, where heroin and a handgun were located. Harris’s sister, Deborah

Harris (“Deborah”), and his girlfriend, Darlisa Lloyd (“Darlisa”), testified for the defense

regarding the officers’ entry. Harris testified on his own behalf regarding his standing to
                                                                                        -3-


challenge the officers’ conduct.

       {¶ 5} Harris testified that, approximately two weeks before November 4, 2014, he

began staying at an apartment on Germantown Street that was rented by his sister,

Deborah. On November 4, he was living at the Germantown Street apartment and

commonly stayed there overnight (five nights per week), he had a key to the apartment,

and he received mail there. Harris indicated that he stayed in the living room of the

apartment, and he kept his belongings in the living room closet. He helped with the

upkeep of the apartment, but he did not contribute financially. Darlisa also stayed at the

apartment with him. Harris had provided the Germantown Street address to his parole

officer, and he testified that he felt that he had an expectation of privacy when he was in

that apartment. Harris was present in the apartment on November 4, 2014, and he had

stayed there overnight the night before.

       {¶ 6} According to the officers’ testimony at the suppression hearing, in November

2014, Dayton Police Officers Christopher Savage, Jacob Rillo, Sean Humphrey, and Mark

Oreck were working as part of the department’s Community Problem Response Team

(CPRT). Savage explained that the primary duties of the CPRT were to “respond to long-

term problems, responds [sic] to drug complaints that come in through citizens and

through crime stoppers, [as] well as respond to crime patterns and conduct patrol.” The

four officers work together, but travel in pairs in two cruisers.

       {¶ 7} “A day or two” before November 4, the Dayton Police Department received

a tip, through Crime Stoppers, that there were drugs being sold out of Deborah Harris’s

apartment. The tip included a street address on Germantown Street and identified the

specific apartment as “the second unit from Germantown.” The tip was assigned to the
                                                                                         -4-


CPRT, and Officer Savage was primarily responsible for investigating the complaint.

       {¶ 8} On the morning of November 4, the four uniformed officers drove to the

Germantown Street apartment to investigate the complaint, and located the second unit

from the street (Apartment B). Officers Oreck and Rillo went to the back of the residence;

Officers Savage and Humphrey went to the front door. Officer Savage knocked on the

door, and Harris responded, opening the front door “[a]pproximately 75 to 80 percent of

the way.” Savage stated, “Hi. I’m Officer Savage from the Dayton Police Department,”

and he asked if Deborah were there. Harris opened the door all the way, stepped back,

and motioned with his arm that Deborah was to his (Harris’s) right in the living room.

       {¶ 9} With the door open, Officers Savage and Humphrey could see a glass

kitchen table behind Harris. The table held a couple of razor blades, a couple of digital

scales, credit cards, a few gelatin capsules, and a box of sandwich baggies. Humphrey

testified that the items were common in the packaging of heroin for sale. The officers

also saw “brown like residue” on the table and scales that, based on their training and

experience, appeared to be heroin residue.

       {¶ 10} Officer Savage testified that, when he saw the drug paraphernalia on the

table, he “immediately stepped” into the apartment and grabbed Harris to prevent him

from reaching any of the items. Officer Humphrey entered the apartment immediately

after Savage. The officers saw that there were a total of four individuals in the apartment.

A woman, later identified as Darlisa, “darted out” from the living room and headed quickly

toward the back of the apartment. Humphrey feared that the woman would obtain a

weapon, and he ordered her to stop.          When the woman did not comply, Officer

Humphrey followed her toward a back bedroom, detained her, and brought her back to
                                                                                        -5-


the living room. Officer Savage notified Officers Oreck and Rillo to come around to the

front of the house to assist, “since there were several people inside the house and there

was drug paraphernalia in plain sight.” Savage and Humphrey both testified that they

were concerned, based on the presence of items used for drug packaging, that guns

could be present in the apartment.

       {¶ 11} After Officer Humphrey brought Darlisa back to the living room area, he

returned to the back bedroom “to make sure there wasn’t any other individuals back in

that back bedroom.” Humphrey saw a firearm and a bag with chunks of heroin on top of

a dresser in the bedroom. Medication and an identification card were next to the firearm.

       {¶ 12} Deborah’s and Darlisa’s version of events differed somewhat from the

officers’ version. Deborah testified that she was in her bedroom on the morning of

November 4, 2014, when she was awakened by pounding on her apartment door. Harris

was in the living room with his girlfriend and a male friend of Deborah, and Deborah called

to Harris to answer the door. Deborah got up and went to her bedroom door. She saw

that Harris had the front door mostly open and that police officers were standing outside.

Deborah walked toward the living room and heard an officer ask for her. The officers

then “pushed the door in” and came into her apartment.

       {¶ 13} When the officers entered, Darlisa was heading toward the bathroom, which

was located across from the bedroom. Darlisa stated that she went there, because she

did not have any clothes on; she was not trying to avoid the police, destroy evidence, or

obtain a weapon. The officers instructed Darlisa to stop. Both Deborah and Darlisa

testified that Darlisa complied with the officers’ instruction, and Darlisa returned to the

living room.
                                                                                           -6-


       {¶ 14} On December 10, 2014, Harris was indicted for having weapons while under

disability and possession of heroin, with a firearm specification, based on evidence seized

on November 4 from Deborah’s apartment. In February 2015, Harris moved to suppress

the evidence, claiming that he had a reasonable expectation of privacy in his sister’s

apartment, that the officers unlawfully entered the apartment without consent or a warrant,

and that the incriminating nature of the firearm and baggie on the bedroom dresser was

not immediately apparent and thus the plain view doctrine did not apply to those items.

       {¶ 15} A hearing on the motion to suppress was held on two dates in March 2015.

After the hearing, the parties submitted supplemental memoranda, in which Harris argued

that the State failed to establish that exigent circumstances existed to justify the officers’

entry into the apartment, that the police conducted a lawful protective sweep, and that the

items on the table near the front door were in plain view. Harris also asserted that the

officers lacked probable cause to arrest him for the items found in the bedroom.

       {¶ 16} The trial court overruled Harris’s motion to suppress. It concluded that

Harris had standing to challenge the officers’ entry into the apartment, but that exigent

circumstances justified the officers’ entry. The court found that, when Harris opened the

door completely, Officers Savage and Humphrey could see drug paraphernalia and

heroin residue, in plain view, on a table. The court stated that, “[i]f the officers had left

without securing the contraband, it very likely would have been removed or destroyed.

Thus, exigent circumstances existed to enter the apartment to prevent the loss, removal

or destruction of contraband.” The court further found that the officers were justified in

conducting a protective sweep and that Officer Humphrey’s testimony established that

his protective sweep was limited to the area that was in the vicinity of where the woman
                                                                                         -7-


[Darlisa] was headed and was no more than a cursory visual inspection of the bedroom.”

       {¶ 17} On appeal, Harris claims that the trial court erred in finding that exigent

circumstances justified the officers’ entry into the home. He argues that the apartment

was dark, and that “it would be almost impossible for the officers in the hallway to observe

the razors and the baggies given the diminutive size of the items and the darkness in the

apartment.” Harris further claims that the State did not establish that the officers were

entitled to conduct a protective sweep.

       {¶ 18} The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution protect individuals from unreasonable searches and

seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v.

Pressley, 2d Dist. Montgomery No. 24852, 2012-Ohio-4083, ¶ 18. “Under applicable

legal standards, the State has the burden of showing the validity of a warrantless search,

because warrantless searches are ‘per se unreasonable under the Fourth Amendment -

-- subject only to a few specifically established and well delineated exceptions.’ ” State

v. Hilton, 2d Dist. Champaign No. 08-CA-18, 2009-Ohio-5744, ¶ 21-22, citing Xenia v.

Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988). Exigent circumstances are a

well-established exception to the Fourth Amendment’s warrant requirement. State v.

Lam, 2015-Ohio-4293, 46 N.E.3d 138, ¶ 12 (2d Dist.).

       {¶ 19} The exigent or emergency circumstances exception to the warrant

requirement applies in a variety of situations, including when entry into a building is

necessary to protect or preserve life, to prevent physical harm to persons or property, or

to prevent the concealment or destruction of evidence, or when officers are in “hot pursuit”

of a fleeing suspect or someone inside poses a danger to the police officer’s safety. E.g.,
                                                                                           -8-

State v. Goode, 2d Dist. Montgomery No. 25175, 2013-Ohio-958, ¶ 13; Kentucky v. King,

563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011). “In order to justify an

exception to the warrant requirement, the costs involved in obtaining a warrant must be

sufficiently significant to justify avoiding the delay inherent in procuring a warrant.” State

v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882 N.E.2d 960, ¶ 29 (2d Dist.); see

King at 462 (“[W]arrantless searches are allowed when the circumstances make it

reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant

requirement.”).

       {¶ 20} “An urgent need to prevent evidence from being lost or destroyed may

constitute an exigent circumstance, particularly where drugs are involved.”          State v.

Johnson, 187 Ohio App.3d 322, 2010-Ohio-1790, 931 N.E.2d 1162, ¶ 14 (2d Dist.). “[A]

warrantless entry to prevent the destruction of evidence is justified if the government

demonstrates: ‘(1) a reasonable belief that third parties are inside the dwelling; and (2) a

reasonable belief that these third parties may soon become aware the police are on their

trail, so that the destruction of evidence would be in order.’ ” State v. Enyart, 10th Dist.

Franklin Nos. 08AP-184 & 08AP-318, 2010-Ohio-5623, ¶ 21, quoting United States v.

Lewis, 231 F.3d 238, 241 (6th Cir.2000); State v. Striks, 2015-Ohio-1401, 31 N.E.3d 208,

¶ 32 (2d Dist.). In determining whether an exigent circumstance exists, courts employ

“an objective test that looks at the totality of the circumstances confronting the police

officers at the time of the entry.” Striks at ¶ 32.

       {¶ 21} We have cautioned that a police officer’s observation of drugs and/or drug

paraphernalia does not necessarily create an exigent circumstance, justifying the officer’s

entry into a home. Goode at ¶ 17. We stated:
                                                                                       -9-


      [T]he mere existence of a “felony in progress” does not justify the

      warrantless entry; not every felony demands urgent police entry into a

      home.      For example, an officer’s observation that a home contains

      marijuana may create probable cause that a felony is in progress, but it

      might not necessarily create an urgent need to enter the home without a

      search or arrest warrant. State v. Alihassan, 10th Dist. Franklin No. 11AP-

      578, 2012-Ohio-825, ¶ 23 (the observance of marijuana and a grinder within

      a residence, alone, did not justify the police officer’s warrantless entry).

      See also, e.g., Horton v. California, 496 U.S. 128, 137, fn.7, 110 S.Ct. 2301,

      110 L.Ed.2d 112 (1990); Coolidge v. New Hampshire, 403 U.S. 443, 468,

      91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Morgan, 743 F.2d

      1158, 1167 (6th Cir.1984) (warrantless entry into a private home is not

      justified by plain view doctrine “merely because an item of contraband has

      become visible to those outside”). A warrantless entry due to a felony in

      progress is only permitted where the particular circumstances of the felony

      demonstrate the existence of an exigent or emergency circumstance.

Goode at ¶ 17.

      {¶ 22} The plain view exception to the warrant requirement applies in situations

where (1) the original intrusion by which the police viewed the item was lawful; (2) the

discovery of the evidence was inadvertent; and (3) the incriminating nature of the

evidence was immediately apparent. State v. Williams, 55 Ohio St.2d 82, 85, 377 N.E.2d

1013 (1978), citing Coolidge v. New Hampshire, 403 U.S. 443, 446, 91 S.Ct. 2022, 29

L.Ed.2d 564 (1971).
                                                                                         -10-


       {¶ 23} Here, the CPRT officers approached Deborah’s apartment on the morning

of November 4. Officer Humphrey testified that they went there “somewhere around

9:00.” Although there were no lights on in the apartment and window coverings were

closed, the sun had risen, and Officer Savage testified that “sunlight was out.” On

redirect examination, Officer Savage testified that, when Harris opened the door, sunlight

went into the apartment and that he (Savage) was able to see into the apartment from

that sunlight.

       {¶ 24} Both Officers Savage and Humphrey testified that, after Harris opened the

front door, they observed drug paraphernalia on a glass kitchen table right behind Harris.

Officer Savage testified that, when Harris opened the front door completely, he (Savage)

“could clearly see” a couple of razor blades, a couple of digital scales, credit cards, a box

of sandwich baggies, and heroin residue on the table located behind Harris. Savage

stated that he recognized the heroin residue from his “training and experience as a

policeman” and that he had been involved in “numerous” arrests involving drugs. Officer

Humphrey similarly testified that, when Harris opened the door most of the way, he could

see “a table a few feet from the opening of the door.         And I could see some drug

paraphernalia on the table right in front of us.” Humphrey elaborated that the items were

digital scales with some brown residue on them, razor blades, credit cards, some baggies,

and a few gelatin capsules, which he stated were all common in the packaging of heroin

for sale.

       {¶ 25} Officer Savage stated that he stepped inside to prevent Harris from

grabbing any of the items on the table. Officer Humphrey testified that he entered “in

order to secure the evidence that we could see there on the table.”
                                                                                           -11-


      {¶ 26} In the light of the officers’ testimony, which the trial court credited, the trial

court reasonably concluded that, after Harris opened the front door to the apartment, the

officers were able to see the drug paraphernalia on the glass kitchen table behind Harris

from their vantage point outside the apartment. Their testimony also established that the

officers immediately recognized the items on the table as drug paraphernalia.

      {¶ 27} Based on the totality of the circumstances, as found by the trial court, the

officers were entitled to enter the apartment in order to prevent the destruction of

evidence, namely drugs and drug paraphernalia. From their view outside the front door,

the officers could see that various items of drug paraphernalia were near the front door

and within Harris’s reach. Although the officers could not see all of the individuals from

outside the apartment, they were aware of at least two individuals inside – Harris and his

sister. The officers reasonably concluded that their immediately entry into the home was

necessary to avoid the destruction of evidence.

      {¶ 28} In addition, the trial court did not err in concluding that Officer Humphrey

was permitted to conduct a protective sweep of the apartment, particularly the bedroom.

      {¶ 29} “A protective sweep is a reasonable exception to the Fourth Amendment’s

warrant requirement.” State v. Mathews, 2d Dist. Montgomery No. 26326, 2015-Ohio-

1047, ¶ 10, citing Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276

(1990). A protective sweep, however, is not a full search of the premises. Id. It is only

a “cursory inspection of those areas where a person who possesses a threat of danger

to the police may be found.” State v. Young, 2d Dist. Montgomery No. 24537, 2011-

Ohio-4875, ¶ 17.

      {¶ 30} A protective sweep is permitted when “ ‘articulable facts which, taken
                                                                                       -12-


together with the rational inferences from those facts, would warrant a reasonably prudent

officer in believing that the area to be swept harbors an individual posing a danger to

those on the * * * scene.’ ” State v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882

N.E.2d 960, ¶ 36 (2d Dist.), quoting Buie, 494 U.S. at 334, 110 S.Ct. 1093. If contraband

is found during a protective sweep, the plain view doctrine allows an officer to seize it,

without a warrant. Mathews at ¶ 14.

      {¶ 31} Once Officers Savage and Humphrey stepped inside Deborah’s apartment,

they observed a total of four individuals. At that time, Darlisa walked quickly from the

living room toward the back bedroom and bathroom. The officers did not know if Darlisa

intended to destroy evidence, obtain a weapon, or do something else. The trial court

found that Darlisa did not comply with the officers’ orders to stop.       When Officer

Humphrey stopped Darlisa in the hallway and escorted her back to the living room, he

could not see inside the entire back bedroom, and did not know if anyone else was

present in the apartment. Based on their prior experience that firearms are often found

where drugs are found, the officers also had reasonable concerns that a firearm might be

present in the apartment. For the officers’ safety, Officer Humphrey was permitted to

conduct a protective sweep to ensure that no other individual, who might pose a danger

to the officers, was present in the apartment. Based on the officer’s testimony, the

firearm and heroin were in plain view on the dresser.1



1
  In his motion to suppress, Harris recognized that “two prescription bottles and an Ohio
Driver’s License belonging to the Defendant Darren Harris” were also on the dresser, but
there was minimal evidence at the suppression hearing about those items and how they
were collected. Regardless, Harris did not argue in his motion to suppress or on appeal
that these additional items were improperly seized under the plain view doctrine. Harris’s
argument on appeal is that “there was no need to do a protective sweep.”
                                                                                          -13-


       {¶ 32} Harris’s first assignment of error is overruled.

                 II. Sufficiency and Manifest Weight of the Evidence

       {¶ 33} In his third assignment of error, Harris claims that the State failed to present

sufficient evidence connecting him to the firearm and that his conviction for having a

weapon while under disability was against the manifest weight of the evidence. Harris’s

brief does not address his conviction for possession of heroin.

       {¶ 34} “A sufficiency of the evidence argument disputes whether the State has

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

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997).

       {¶ 35} In contrast, “a weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” Wilson at ¶ 12. See Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’

refers to a greater amount of credible evidence and relates to persuasion”). When

evaluating whether a conviction is against the manifest weight of the evidence, the

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.” Thompkins, 78

Ohio St.3d at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).
                                                                                        -14-


      {¶ 36} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses.   State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997).      However, we may determine which of several competing

inferences suggested by the evidence should be preferred.          Id.   The fact that the

evidence is subject to different interpretations does not render the conviction against the

manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be

reversed as being against the manifest weight of the evidence only in exceptional

circumstances. Martin at 175.

      {¶ 37} Six witnesses testified for the State at trial; Harris did not offer any

witnesses. The State’s evidence established the following facts.

      {¶ 38} At approximately 9:00 a.m. on November 4, 2014, four CPRT officers went

to a small one-bedroom apartment on Germantown Street to investigate a complaint that

drugs were being sold out of an apartment belonging to Deborah; a Sherri Harris was

also named in the complaint. Officers Savage and Humphrey went to the front door; the

other officers went to the back of the apartment. When Harris answered the front door,

Officers Savage and Humphrey saw drug paraphernalia on a table behind him. The

officers entered the apartment. Four individuals were present inside – Harris, Deborah,

Darlisa, and Ron Williams.

      {¶ 39} When the officers entered the apartment, Darlisa “made a dash” toward the

back of the apartment and did not stop when the officers asked her to. For officer safety,

Officer Humphrey followed Darlisa down a hallway and brought her back to the living

room. When Officer Humphrey returned, he informed Officer Savage that he had seen
                                                                                         -15-


a handgun and what he believed to be heroin on a dresser in the bedroom, which was

down the hall. Officer Humphrey took Officer Savage to the room and showed Savage

what he (Humphrey) observed.

       {¶ 40} The officers collected several items found on top of the dresser in the

bedroom. One item was a loaded silver and black handgun, which the parties stipulated

was examined by the Miami Valley Regional Crime Lab (“MVRCL”), found to be in good

working order, test fired, and found to be operable.          The officers collected two

prescription bottles of medication that were prescribed to a Darren Harris; no other bottles

of medication were on the dresser. Officer Savage testified that approximately 3.8 grams

of suspected heroin was collected from the dresser; a forensic chemist from MVRCL

subsequently tested the substance and determined that it was 2.70 grams of heroin, plus

or minus .02 grams. Finally, the officers collected an Ohio driver’s license for Darren

Harris from the dresser. (The officers also seized a driver’s license for Darryl Harris, who

Officer Savage believed was Darren Harris’s brother, which was found on Darren Harris’s

person.)

       {¶ 41} Officer Humphrey testified that the bedroom contained a bed, and there was

men’s and women’s clothes throughout the bedroom. In addition to the seized items,

there was a bottle of liquor, some food, a photograph, and some other items on the

dresser. The photograph looked similar to Harris.

       {¶ 42} When asked if the officers were able to determine through their investigation

who lived at the apartment, Savage responded that the “only individual that we could

prove through records that actually used that as his address was Mr. Darren Harris.”

Deborah had told the officers that it was her apartment.
                                                                                         -16-


       {¶ 43} The officers did not find any drugs or firearms on Harris’s person. When

Harris answered the door, he had been wearing sweatpants; he was not wearing a shirt

or shoes. Harris did not go into the bedroom while the officers were present. Harris

never indicated that the drugs and firearm found in the bedroom were his.

       {¶ 44} Officer Humphrey testified that he placed Harris under arrest. Humphrey

explained that he had determined, at that point, that the bedroom was Harris’s bedroom

based on the items found in that room. Humphrey testified that, in addition to items that

appeared to belong to Harris, the bedroom also contained items belonging to Darlisa,

including her driver’s license, which was found on the bed.

       {¶ 45} The parties stipulated that Harris had a prior conviction in 2002 for rape, a

first-degree felony, in Montgomery County. Detective Robert Shumaker of the Sheriff’s

Office testified that Harris registers his address with the Sheriff’s Office and that, as of

November 4, 2014, Harris registered the Germantown Street apartment as his address.

That address was verified by the Sheriff’s Office on October 10, 2014, when Harris was

located at that apartment.

       {¶ 46} Emily Draper of the Miami Valley Regional Crime Lab swabbed the firearm

for DNA. She obtained a partial DNA profile, which was insufficient for “inclusionary

purposes,” meaning that there was so little DNA that she could not say who had touched

it. Draper compared the sample to a sample from Harris, and Draper was able to exclude

Harris as the source of the DNA on the gun. Draper was not given DNA samples from

any other individuals for comparison.

       {¶ 47} Harris was indicted of having weapons under disability, in violation of R.C.

2923.13(A)(2), which prohibits a person from knowingly acquiring, having, carrying, or
                                                                                         -17-


using any firearm or dangerous ordnance, if he has been convicted of any felony offense

of violence. (Emphasis added.) Harris does not contest that he has a prior conviction

that renders him unable to lawfully possess a firearm.

       {¶ 48} Harris argues, in essence, that the State presented insufficient evidence

that he had possession of the handgun and that the manifest weight of the evidence

created reasonable doubt that he constructively possessed the handgun.

       “In order to ‘have’ a firearm, one must either actually or constructively

       possess it.” Actual possession requires ownership and/or physical control.

       Constructive possession can be established by the fact that an individual

       had access to the gun and the ability to control its use.

State v. Fleming, 2d Dist. Clark No. 2014-CA-136, 2015-Ohio-5382, ¶ 26.

       {¶ 49} More than one person may be found to have joint constructive possession

of an item. State v. Cole, 2d Dist. Montgomery No. 26576, 2015-Ohio-5295, ¶ 34; see

also State v. Williams, 4th Dist. Scioto No. 11CA3408, 2012-Ohio-4693, ¶ 38; State v.

Cooper, 3d Dist. Marion No. 9-06-49, 2007-Ohio-4937, ¶ 25 (“two or more persons may

have joint constructive possession of a particular item”). The critical issue is whether the

person is conscious of the presence of the object and is able to exercise dominion and

control over that item, even if it is not within his or her immediate physical possession.

E.g., State v. Lam, 2015-Ohio-4293, 46 N.E.3d 138, ¶ 41 (2d Dist.).

       {¶ 50} There was no evidence at trial that Harris had actual possession of the

firearm.   Rather, the State’s case was based on constructive possession.                 In

determining whether a person constructively possessed an item, we examine the totality

of the relevant facts and circumstances. “The State may prove constructive possession
                                                                                       -18-


solely through circumstantial evidence. Circumstantial evidence and direct evidence

have the same probative value.”       (Citations omitted.) State v. Peterson, 2d Dist.

Champaign No. 2014-CA-1, 2015-Ohio-789, ¶ 20.

      {¶ 51} Upon review of the evidence, we find that Harris’s conviction for having a

weapon while under disability was based on sufficient evidence and was not against the

manifest weight of the evidence. The charge was based on the officers’ recovery of a

handgun at the Germantown Street apartment, a small one-bedroom unit. Although

Deborah identified herself as the renter of the apartment, Harris had listed the apartment

as his residence, a fact that was confirmed by the Sheriff’s Office. Harris answered the

door when the CPRT officers knocked on November 4, 2014.

      {¶ 52} The gun was located on the dresser in the apartment’s bedroom, and the

State presented evidence indicating that the bedroom was used by Harris. Harris’s

driver’s license was located on the dresser, along with a photograph of him and two

prescription bottles with his name. Both men’s and women’s clothing were found in the

bedroom, and items that belonged to Darlisa, Harris’ girlfriend, were also found in the

bedroom, including Darlisa’s driver’s license. The firearm was located on the dresser

with the personal items belonging to Harris, including Harris’s medication and driver’s

license. And, while there was evidence that another person (Darlisa) also used the

bedroom and there was no evidence that access to the bedroom was restricted, the

possibility that another person may have also constructively possessed the gun did not

preclude a finding that Harris did, as well. Based on the totality of the circumstances,

the jury could have reasonably concluded that Harris knew of and was able to exercise

dominion and control over the firearm found in the bedroom. See State v. Breneman, 2d
                                                                                            -19-


Dist. Champaign No. 2013-CA-27, 2015-Ohio-4783, ¶ 41 (jury could have reasonably

concluded that defendant constructively possessed razor blade with cocaine found on the

television table in his bedroom).

       {¶ 53} Harris emphasizes that DNA evidence failed to connect him to the gun and,

in fact, established that the gun was handled by someone else. Harris argues that the

evidence thus demonstrated that he did not have exclusive possession of the firearm,

and he claims that he had only a 25 percent probability of having ownership and

possession of the weapon, given that three other individuals were in the apartment on the

morning of November 4.

       {¶ 54} The presence of DNA from another person on the handgun strongly

suggested that another person had handled the weapon at some point. However, the

lack of Harris’s DNA on the handgun did not require a conclusion that Harris did not

knowingly “have” the firearm when it was found by the police, particularly when the gun

was located in what appeared to be his bedroom alongside his driver’s license and

prescription medication. See State v. Barber, 10th Dist. Franklin No. 14AP-557, 2015-

Ohio-2653, ¶ 21. Based on the totality of the evidence, we cannot conclude that the jury

lost its way when it convicted Harris of having a weapon while under disability.2

       {¶ 55} Harris’s third assignment of error is overruled.

                          III. Ineffective Assistance of Counsel

       {¶ 56} In his second assignment of error, Harris claims that his counsel acted

deficiently by failing to call any witnesses at trial. Harris notes that his sister testified at


2
 Although Harris did not address his possession of heroin conviction in his brief, the same
analysis supports a conclusion that he possessed the heroin found on the bedroom
dresser.
                                                                                      -20-


the suppression hearing that she was asleep in her bedroom, with the bedroom door

closed, when the police arrived at her apartment. Harris argues that the jury could have

determined, based on that information, that he did not “possess” the gun found in the

bedroom.

      {¶ 57} To establish ineffective assistance of counsel, Harris must demonstrate

both that trial counsel’s conduct fell below an objective standard of reasonableness and

that the errors were serious enough to create a reasonable probability that, but for the

errors, the outcome of her trial would have been different. See Strickland v. Washington,

466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption that

his or her conduct falls within the wide range of reasonable assistance. Strickland, 466

U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. Hindsight is not permitted to distort the

assessment of what was reasonable in light of counsel’s perspective at the time, and a

debatable decision concerning trial strategy cannot form the basis of a finding of

ineffective assistance of counsel.   State v. Cook, 65 Ohio St.3d 516, 524-525, 605

N.E.2d 70 (1992); State v. Rucker, 2d Dist. Montgomery No. 24340, 2012-Ohio-4860, ¶

58.

      {¶ 58} At the suppression hearing, Deborah testified that she resided at the

Germantown Street apartment and that the bedroom was hers. She stated that she “was

in my bedroom,” with the door closed, when the officers knocked on November 4. When

asked what was in her bedroom, she responded, “My bed, my dresser, and my fridge

was.” Deborah testified that she came out of her bedroom and walked into the living

room before the officers entered the apartment.
                                                                                           -21-


       {¶ 59} Had Deborah testified to this effect at trial, her testimony may have rebutted

the State’s circumstantial evidence that the bedroom was Harris’s. However, the record

does not reflect how she would have testified if she were asked about specific items on

the dresser, including Harris’s identification and medication, the handgun and the heroin.

It is possible that defense counsel was privy to additional information and that counsel

reasonably concluded that, on the whole, Deborah’s testimony would be more damaging

than helpful.   With the limited information before us, defense counsel may have

employed a reasonable trial strategy when he elected not to call Deborah as a witness.

We will not second-guess debatable trial strategy.

       {¶ 60} We further note that, although the record does not reflect the reason for

defense counsel’s decision not to call Deborah, counsel did inform the trial court and the

State, prior to jury selection, that he was going to release the witnesses on his witness

list (Deborah and Darlisa) from their subpoenas, and defense counsel asked the court to

allow those individuals to sit in the courtroom during the trial. The trial court responded:

       Okay. Now I just want to make sure that Mr. Harris understands that if that

       happens, and those individuals sit through the trial, I’m not going to allow

       them to take the witness stand in his defense case. And so, I just want that

       to be absolutely clear that I’ll allow those individuals to sit through the trial

       and observe all of our proceedings. It’s an open and public trial. But if

       they -- those two individual sit there and watch the trial, they absolutely will

       not be allowed by this court to then take the witness stand, because they

       will have had the unfair advantage of listening to what everybody else has

       had to say.
                                                                                          -22-


Defense counsel conferred with Harris, and Harris indicated to the court that he

understood. Thus, the record indicates that, immediately prior to trial, Harris was aware

that Deborah would not be called as a witness, that he had conferred with his attorney

about that matter, and that he voiced no concerns on the record.

       {¶ 61} With the record before us, we cannot conclude that defense counsel acted

deficiently by failing to call any witnesses at trial. Harris’s second assignment of error is

overruled.

                                      IV. Conclusion

       {¶ 62} The trial court’s judgment will be affirmed.

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

DONOVAN, J. and FAIN, J., concur.

Copies mailed to:

Ann M. Graber
Enrique G. Rivera-Cerezo
Hon. Barbara P. Gorman
