[Cite as State v. Burns, 2011-Ohio-815.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :      JUDGES:
                                            :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                  :      Hon. Sheila G. Farmer, J.
                                            :      Hon. John W. Wise, J.
-vs-                                        :
                                            :
JESSE NELSON BURNS                          :      Case No. 2010CA00279
                                            :
        Defendant-Appellant                 :      OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Court of Common Pleas,
                                                Case No. 2010CR0205



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT ENTRY:                         February 22, 2011




APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JOHN D. FERRERO                                 MATTHEW PETIT
Stark County Prosecutor                         116 Cleveland Avenue North
                                                Suite 808
By: RONALD MARK CALDWELL                        Canton, OH 44702
Assistant Prosecuting Attorney
110 Central Plaza South
Suite 510
Canton, OH 44702
Stark County, Case No. 2010CA00279                                                    2

Farmer, J.

       {¶1}   On March 15, 2010, the Stark County Grand Jury indicted appellant,

Jesse Nelson Burns, on one count of possession of drugs (cocaine) in violation of R.C.

2925.11. Said charge arose from an incident wherein appellant fled from police after a

routine traffic stop and cocaine was discovered in a baseball cap appellant had

discarded.

       {¶2}   On May 11, 2010, appellant filed a motion to suppress, claiming an illegal

arrest and seizure. A hearing was held on May 17, 2010. By judgment entry filed June

18, 2010, the trial court denied the motion.

       {¶3}   A jury trial commenced on August 26, 2010. The jury found appellant

guilty. By journal entry filed September 3, 2010, the trial court sentenced appellant to

eighteen months in prison.

       {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                               I

       {¶5}   "THE TRIAL COURT'S FINDING OF GUILT IS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

                                               II

       {¶6}   "THE APPELLANT WAS DEPRIVED OF DUE PROCESS OF (SIC) BY

THE MISCONDUCT OF THE PROSECUTOR."
Stark County, Case No. 2010CA00279                                                        3


                                             III

       {¶7}   "THE    TRIAL     COURT      COMMITTED        REVERSIBLE        ERROR      IN

INSTRUCTING THE JURY AS TO CONSTRUCTIVE POSSESSION WHEN SAID

INSTRUCTION WAS NOT WARRANTED BY THE EVIDENCE."

                                              I

       {¶8}   Appellant claims the jury verdict was against the manifest weight of the

evidence. We disagree.

       {¶9}   On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. "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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, 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." State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State

v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction." Martin at 175. We note the weight to be given to the evidence and the

credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990), 49

Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. The trier of fact "has the best
Stark County, Case No. 2010CA00279                                                       4


opportunity to view the demeanor, attitude, and credibility of each witness, something

that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415,

418, 1997-Ohio-260.

      {¶10} Appellant was convicted of drug possession (cocaine) in violation of R.C.

2925.11 which states, "[n]o 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 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).

      {¶11} Appellant never challenged that he was the driver of the vehicle, who,

when stopped, ran from the police and was arrested following a chase.           Appellant

argues there was insufficient evidence to prove that he possessed cocaine and that the

baseball cap found on the ground (wherein the cocaine was hidden in the bill) was his.

      {¶12} Both Canton City Police Officers, Craig Riley and Gary Premier, testified

as to how they stopped appellant for running a stop sign. T. at 73-75, 113-114. After

appellant exited his vehicle, he ran from the officers. Appellant was wearing a baseball

cap, a leather jacket, and dark clothing. T. at 77, 115. When appellant was stopped

and arrested after a foot pursuit, he was not wearing the baseball cap. T. at 81, 118-

119. Officer Riley, who was the primary pursuer, followed appellant as he rounded a

corner, lost him for a brief second, and then observed the baseball cap on the ground.

T. at 78. The entire chase took twenty seconds. T. at 79. After appellant was arrested,

Officer Premier retraced the route and found the baseball cap around the corner from

where appellant was eventually stopped. T. at 79, 118-119. The baseball cap was
Stark County, Case No. 2010CA00279                                                      5


lying upside down with a baggie protruding from the bill. T. at 118. Within the baggie

was crack cocaine. T. at 165.

       {¶13} Defense counsel attempted to impeach or cast doubt on the officers'

testimony by bringing up the fact that the officers believed the cocaine measured 3.3

grams when the crime lab measured the content at 1.78 grams. T. at 95-98, 138-142,

165. Officer Riley explained the scale used by the police to weigh the baggie was not

calibrated. T. at 96.

       {¶14} Defense counsel also brought into question the location of where the

baseball cap was discovered.      Officer Premier testified he found the cap on Rose

Street, around the corner from where appellant was stopped and apprehended (Newton

Street), while Officer Riley testified he saw the cap on the ground as he rounded the

corner while chasing appellant from 8th Street to Newton Street. T. at 77-78, 118.

       {¶15} The jury chose to resolve the credibility issues in favor of the officers. It

was the undisputed testimony from the officers that appellant was wearing a baseball

cap at the beginning of the chase and some twenty seconds later, was no longer

wearing it. The baseball cap (Exhibit 2) was identified by Officer Riley as being the

same one appellant had on at the commencement of the chase. T. at 81.

       {¶16} Both officers testified the neighborhood was deserted during the chase

and no one else was out and about the area. T. at 80, 121-122.

       {¶17} Upon review, we find sufficient evidence, if believed, to support the

conviction, and no manifest miscarriage of justice.

       {¶18} Assignment of Error I is denied.
Stark County, Case No. 2010CA00279                                                       6


                                            II

       {¶19} Appellant claims he was denied due process by the prosecutor's

misconduct during closing arguments. We disagree.

       {¶20} Appellant argues the prosecutor's rebuttal argument was inappropriate

because she misled the jury as to the evidence, and inappropriately argued that

defense counsel concealed the facts and distracted the jury.

       {¶21} The test for prosecutorial misconduct is whether the prosecutor's

comments and remarks were improper and if so, whether those comments and remarks

prejudicially affected the substantial rights of the accused. State v. Lott (1990), 51 Ohio

St.3d 160, certiorari denied (1990), 112 L.Ed.2d 596.          In reviewing allegations of

prosecutorial misconduct, it is our duty to consider the complained of conduct in the

contest of the entire trial. Darden v. Wainwright (1986), 477 U.S. 168.

       {¶22} We note no objections were made during the course of the rebuttal

argument. An error not raised in the trial court must be plain error for an appellate court

to reverse. State v. Long (1978), 53 Ohio St.2d 91; Crim.R. 52(B). In order to prevail

under a plain error analysis, appellant bears the burden of demonstrating that the

outcome of the trial clearly would have been different but for the error. Long. Notice of

plain error "is to be taken with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice." Id. at paragraph three of the syllabus.

       {¶23} The claimed errors are as follows:

       {¶24} "MS. SCHNELLINGER: ***This is in no way, shape of form the venue to

say you guys didn't do your job. This is about whether or not he possessed crack

cocaine. Not the goal, not your goal. Your goal is to simply say whether or not he
Stark County, Case No. 2010CA00279                                                      7


possessed crack cocaine. He said a lot about what defense attorneys do and I will tell

you one thing about what defense attorneys do. It's their job. Smoke and mirrors.

Don't focus on the facts, don't focus on the elements, focus on everything else. There is

that saying you can't see the forest for the trees. Same thing. I need you to look at the

big picture. I need you to look at the facts and the evidence that was presented to you.

Try and ignore the smoke and the mirrors because your job is to find the facts, find the

truth and find out whether or not this individual possessed crack cocaine. That's it.

       {¶25} "***

       {¶26} "Let's look at what they were consistent about.        The path they were

consistent about. That he went around a corner and he lost the hat. Where did Officer

Premier find it? Right around the corner. Where did Officer Riley say it was? Right

around the corner. They were very consistent. Yep, they had the wrong corner. He

wants you to make that a big deal. But what were they consistent about also? This

man was wearing this hat. Both of them said that.

       {¶27} "And this crack cocaine was in this hat. This hat that was on his head,

that they both saw him wearing. They said there wasn't any pieces of clothing out there,

there is not any other hats out there. This is the hat that was on his head. They didn't

have that wrong.

       {¶28} "***

       {¶29} "He wants you to see - - look at the trees rather than the forest. I need

you to look at the big picture.

       {¶30} "***
Stark County, Case No. 2010CA00279                                                       8


         {¶31} "Why was he running? Because he had crack cocaine on him and he

didn't want the officers to find it on him. That is why he ran. That is evidence of his

guilt.

         {¶32} "And where did the crack come from then? Just lays around Canton, is

that what happens? I can assure you it does not because crack costs money and

money doesn't lay around. It doesn't happen." T. at 204-205, 207, 208, and 209,

respectively.

         {¶33} We have reviewed the rebuttal statements vis-à-vis defense counsel's

closing arguments.      Defense counsel stated the police officer "[d]idn't do his job.

Weighed the cocaine improperly. Didn't tell the truth about what's in the report, what it's

going to show, said he found the hat here. Other officer said we found it there. Didn't

have a conversation with him about it. Did have a conversation with him about it. All

these things may seem little, and I hope to you that it's not some defense lawyers

tactic." T. at 200-201. Defense counsel invited the jury "to send a message to these

police officers to do your job by finding Mr. Burns not guilty and letting them know that

they didn't do their job." T. at 204. Defense counsel complained about what was not

done (DNA testing on the baseball cap, video of the stop). T. at 203.

         {¶34} We find the ultimate issue was whether or not the jury believed the

officers' testimony as to appellant wearing a baseball cap and the ditching of the cap.

We fail to find that any of the rebuttal argument was unduly prejudicial and not

warranted by defense counsel's statements.

         {¶35} Assignment of Error II is denied.
Stark County, Case No. 2010CA00279                                                      9


                                             III

       {¶36} Appellant claims the trial court erred in giving a jury instruction on

constructive possession as the evidence did not suggest that he had constructive

possession. We disagree.

       {¶37} Appellant did not object to the complained of instruction. Crim.R. 30(A)

governs instructions and states the following in pertinent part:

       {¶38} "On appeal, a party may not assign as error the giving or the failure to give

any instructions unless the party objects before the jury retires to consider its verdict,

stating specifically the matter objected to and the grounds of the objection. Opportunity

shall be given to make the objection out of the hearing of the jury."

       {¶39} Because appellant failed to object, we must review this issue under the

plain error doctrine as set forth supra.

       {¶40} The complained of instruction is as follows:

       {¶41} "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. For constructive possession to exist it must also be

shown that the person was conscious of the presence of the object. Dominion and

control as well as whether a person was conscious of the presence of an item of

contraband may be established by circumstantial evidence, although a Defendant's

mere proximity is in itself insufficient to establish constructive possession." T. at 180-

181.

       {¶42} The cocaine was discovered in the bill of appellant's baseball cap. The

jury could have concluded that appellant did not have actual possession of the cocaine
Stark County, Case No. 2010CA00279                                                    10


i.e., in his hand, but had constructive possession of it as it was on his head inside his

cap.   The jury could have found that appellant knowingly exercised dominion and

control over the cocaine even though the cocaine was not within his immediate physical

possession, and he was conscious of the presence of the cocaine since it was "hidden"

in the bill of the baseball cap.

       {¶43} Upon review, we do not find any plain error in the giving of the complained

of jury instruction.

       {¶44} Assignment of Error III is denied.

       {¶45} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




                                            _s/Sheila G. Farmer__________________




                                            _s/W. Scott Gwin_____________________




                                            _s/John W. Wise     ___________________


                                                             JUDGES

SGF/sg 210
Stark County, Case No. 2010CA00279                                            11


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
JESSE NELSON BURNS                      :
                                        :
       Defendant-Appellant              :        CASE NO. 2010CA00279




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                        _s/Sheila G. Farmer__________________




                                        _s/W. Scott Gwin_____________________




                                        _s/John W. Wise   ___________________


                                                        JUDGES
