[Cite as State v. Kendall, 2012-Ohio-1172.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.     25721

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
RONALD A. KENDALL                                   COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 10 07 1960 (B)

                                  DECISION AND JOURNAL ENTRY

Dated: March 21, 2012



        BELFANCE, Judge.

        {¶1}     Ronald Kendall appeals his convictions for aggravated possession of drugs and

possession of drugs. For the reasons set forth below, we affirm his convictions, but remand the

matter for resentencing.

                                               I.

        {¶2}     Mr. Kendall was a passenger in Michael Thomas’ car. While the car was stopped

in Kenmore, a man approached and spoke to Mr. Kendall from the passenger side of the vehicle.

After the man walked away, Officer Edward Hornacek, believing he had witnessed a drug

transaction, pulled up to the vehicle.

        {¶3}     When Officer Hornacek got out of his cruiser, he observed Mr. Kendall making

suspicious movements as though he was reaching under the front seat of the car. Believing that

Mr. Kendall was possibly reaching for a weapon or destroying evidence, Officer Hornacek

ordered him out of the vehicle and searched under Mr. Kendall’s seat. He found a black case
                                                   2


containing multiple types of pills, which tests later revealed to contain oxycodone,

buprenorphine, and hydrocodone.

       {¶4}    A jury convicted Mr. Kendall of aggravated drug possession as well as drug

possession, and the trial court sentenced him to an aggregate prison term of 10 months, but

suspended the sentence on the condition that Mr. Kendall complete 18 months of community

control.

       {¶5}    Mr. Kendall has appealed, raising four assignments of error for our review.

                                                   II.

                                  ASSIGNMENT OF ERROR I

       APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
       WHEN COUNSEL FAILED TO FILE A MOTION TO SUPPRESS THE
       EVIDENCE SEIZED AS A RESULT OF A WARRANTLESS SEARCH THAT
       LACKED REASONABLE SUSPICION OF CRIMINAL ACTIVITY.

       {¶6}    In Mr. Kendall’s first assignment of error, he argues that the police officers lacked

reasonable suspicion to initiate a stop, and, therefore, his attorney was ineffective for failing to

file a motion to suppress the evidence obtained.

       {¶7}    In order to prevail on an ineffective assistance of counsel claim, a defendant

“must show (1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.” State v. Mundt, 115 Ohio

St.3d 22, 2007–Ohio–4836, ¶ 62, citing Strickland v. Washington, 466 U.S. 668, 687–688, 694

(1984). The “failure to file a suppression motion does not constitute per se ineffective assistance

of counsel.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), quoting Kimmelman v. Morrison,

477 U.S. 365, 384 (1986). “To establish ineffective assistance of counsel for failure to file a

motion to suppress, a defendant must prove that there was a basis to suppress the evidence in
                                                  3


question.”    State v. Brown, 115 Ohio St.3d 55, 2007–Ohio–4837, ¶ 65. In addition, deficient

performance cannot be demonstrated where the record fails to disclose the circumstances

surrounding the alleged Fourth Amendment violation. See, e.g., State v. Tibbetts, 92 Ohio St.3d

146, 166 (2001) (finding no violation of counsel’s duty where record failed to reveal

circumstances surrounding police’s seizure). Counsel’s decision not to file a motion to suppress

may be a matter of trial strategy, including counsel’s reasonable assessment of whether such a

motion is likely to succeed and recognition that filing a motion to suppress has risks. Madrigal,

87 Ohio St.3d at 389. Furthermore, in order to satisfy the prejudice prong of the Strickland test,

a defendant must demonstrate that there was a reasonable probability that the motion to suppress

would have been granted. See, e.g., State v. Fair, 2nd Dist. No. 24120, 2011-Ohio-3330, ¶ 27.

See also Kimmelman at 390-391.

       {¶8}     According to Mr. Kendall, there was a reasonable probability that a motion to

suppress would have been granted. The testimony put on by the State at trial was directed at

broadly describing the officer’s surveillance of the appellant and establishing the essential

elements of the offenses with which he was charged. However, the circumstances surrounding

the stop are not fully explored in the record before us. Given the limited record, we cannot

conclude that there is a reasonable probability that a motion to suppress would have been

successful. See, e.g., Fair at ¶ 27, 46. Accordingly, Mr. Kendall has not satisfied the second

prong of the Strickland test and, therefore, has not demonstrated that he received ineffective

assistance of counsel. See Mundt at ¶ 62.

       {¶9}     His first assignment of error is overruled.
                                                4


                                        ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       OVERRULED DEFENDANT’S CRIM.[R.] 29(A) MOTION FOR JUDGMENT
       OF ACQUITTAL BECAUSE THE EVIDENCE WAS INSUFFICIENT TO
       SUPPORT A CONVICTION FOR POSSESSION OF DRUGS.

       {¶10} In Mr. Kendall’s second assignment of error, he argues that the State failed to

produce sufficient evidence that he knowingly possessed the drugs under the seat of the car. We

disagree.

       {¶11} “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.” State v. Frashuer, 9th Dist. No. 24769, 2010-

Ohio-634, ¶ 33. See also State v. Morris, 9th Dist. No. 25519, 2011–Ohio–6594, ¶ 12. In

determining whether the evidence presented was sufficient to sustain a conviction, this Court

reviews the evidence in the light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d

259, 274 (1991). Furthermore:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

       {¶12} Mr. Kendall was convicted of violating R.C. 2925.11(A), which provides that

“[n]o person shall knowingly obtain, possess, or use a controlled substance.”         With some

exceptions, if the drug involved is a schedule II controlled substance, a person who violates R.C.

2925.11(A) is guilty of aggravated possession of drugs. R.C. 2925.11(C)(1). If the substance

involved is a schedule III controlled substance, the offense is possession of drugs.         R.C.

2925.11(C)(2). “A person acts knowingly, regardless of his purpose, when he is aware that his
                                                5


conduct will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when he is aware that such circumstances probably exist.” R.C.

2901.22(B).

       {¶13} Mr. Kendall does not dispute that the black box discovered under his seat in the

car contained schedule II and III controlled substances.       Rather, he argues that there was

insufficient evidence to find that he was in possession of the box and the drugs found inside.

       {¶14} “‘Possess’ * * * 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). Possession “may

be constructive as well as actual. 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.” State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus.

       {¶15} Mr. Thomas testified that Mr. Kendall called him to ask for a ride. Mr. Thomas

obliged, picking Mr. Kendall up and driving him to Kenmore. Mr. Kendall directed Mr. Thomas

to drive to a location in Kenmore and stopped when Mr. Kendall told him to stop. Mr. Thomas

said that a man approached Mr. Kendall’s window and spoke to Mr. Kendall, but Mr. Thomas,

concerned about the neighborhood, did not pay close attention to the conversation. Mr. Thomas

also testified that he could not say whether Mr. Kendall and the other man exchanged anything

but the conversation lasted less than one minute.

       {¶16} Mr. Thomas testified that, after the other man walked away, he started to drive but

was stopped by a police officer. According to Mr. Thomas, as the police approached the car, Mr.

Kendall “was bent over * * * doing something in the car.” Mr. Thomas thought Mr. Kendall

“was trying to hide something underneath the seat.” Mr. Thomas testified that the police pulled a
                                                6


black case from his car and that he learned the case contained pills. According to Mr. Thomas,

he believed that the pills were Mr. Kendall’s “[b]ecause [Mr. Kendall] admitted to the police

officer those were his pills when asked.” On cross-examination, Mr. Thomas denied having ever

seen the pills before.

       {¶17} Officer Hornacek testified that, as he approached the car Mr. Kendall was sitting

in, he saw Mr. Kendall make a movement as though he was reaching underneath his seat.

Officer Hornacek testified that, based on Mr. Kendall’s movements, he thought that Mr. Kendall

was either reaching for a weapon or attempting to destroy evidence. When Officer Hornacek

looked under Mr. Kendall’s seat, he discovered the black container with controlled substances

inside. He asked Mr. Kendall what he was doing in the area and if he had just bought the drugs,

but Mr. Kendall denied that the drugs were his or knowing who owned the drugs.

       {¶18} According to Officer Hornacek, Mr. Thomas told him that Mr. Kendall had asked

for a ride to buy drugs and that Mr. Kendall had bought drugs from the man who came to the

window. Officer Hornacek also testified that Mr. Thomas told him that, when he arrived, Mr.

Kendall had attempted to hide what he had bought underneath his seat.

       {¶19} While Officer Hornacek testified that Mr. Kendall denied that the drugs were his,

when reviewing the sufficiency of the evidence, we must view the evidence in the light most

favorable to the State. Mr. Thomas and Officer Hornacek both testified that they saw Mr.

Kendall reach under his seat as though he was attempting to hide or reach something as Officer

Hornacek approach the car. When Officer Hornacek searched under Mr. Kendall’s seat, he

discovered a black container containing the controlled substances. Mr. Thomas also testified that

Mr. Kendall admitted to the police that the drugs were his. Viewing the evidence in the light

most favorable to the State, a rational trier of fact could conclude that Mr. Kendall possessed the
                                                 7


box underneath his seat and, given that he was attempting to hide it, knew that it contained

controlled substances. Accordingly, there was sufficient evidence to conclude that Mr. Kendall

violated R.C. 2925.11(A) by possessing schedule II and schedule III substances.

       {¶20} His second assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       DEFENDANT’S CONVICTION FOR AGGRAVATED POSSESSION OF
       DRUGS AND POSSESSION OF DRUGS WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶21} Mr. Kendall argues that his convictions for aggravated drug possession and

possession of drugs were against the manifest weight of the evidence because Officer Hornacek

testified that Mr. Kendall denied owning the drugs. We disagree.

       {¶22} In reviewing a challenge to the weight of the evidence, the appellate court:

       [m]ust review 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 trier of fact clearly lost its way and created such a manifest
       miscarriage of justice that the conviction must be reversed and a new trial
       ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶23} Mr. Kendall argues that his convictions were against the manifest weight of the

evidence because Officer Hornacek testified that Mr. Kendall denied ownership of the drugs.

However, while Officer Hornacek’s testimony contradicts Mr. Thomas’s testimony that he heard

Mr. Kendall admit to owning the drugs, they both testified that Mr. Kendall reached under his

seat when Officer Hornacek approached the car, and there is no dispute that the container of

drugs was found underneath Mr. Kendall’s seat.

       {¶24} Mr. Kendall also points to the fact that the car was Mr. Thomas’ and that Mr.

Thomas had been previously convicted for trafficking drugs. Mr. Kendall argues that the drugs
                                                 8


likely belonged to Mr. Thomas and, further, he did not have control over the container because it

was not his car. While Mr. Kendall’s argument is logical, the fact remains that two witnesses

testified that, when police stopped the car, Mr. Kendall reached underneath his seat, which is

where the container of drugs was found. Mr. Thomas denied having ever seen the drugs before

Officer Hornacek pulled the container from underneath Mr. Kendall’s seat.             Based on the

testimony of Officer Hornacek and Mr. Thomas, the jury, in resolving the credibility of the

witnesses, could reasonably find that Mr. Kendall knew the drugs were there and had attempted

to hide them, and, therefore, was in possession of the container.

       {¶25} After a thorough review of the record, we cannot say that the jury lost its way and

created a manifest miscarriage of justice when it found that Mr. Kendall violated R.C.

2925.11(A). Accordingly, his convictions for aggravated possession of drugs and possession of

drugs are not against the manifest weight of the evidence.

       {¶26} Mr. Kendall’s third assignment of error is overruled.

                                     ASSIGNMENT OF ERROR IV

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       FAILED TO MERGE THE TWO COUNTS FOR SENTENCING.

       {¶27} Mr. Kendall argues that the trial court erred by sentencing him for allied offenses

of similar import. In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme

Court held that, “[w]hen determining whether two offenses are allied offenses of similar import

subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” Id. at

syllabus. Because Johnson was decided after Mr. Kendall was sentenced, the trial court did not

consider it. In light of our precedent, it is appropriate to remand this case so that the trial court

can apply Johnson in the first instance. See, e.g., State v. Creel, 9th Dist. No. 25476, 2011–

Ohio–5893, ¶ 4.
                                                 9


                                                III.

       {¶28} Mr. Kendall’s first, second, and third assignments are overruled. With respect to

his fourth assignment of error, the judgment of the Summit County Court of Common Pleas is

reversed and the cause is remanded for further proceedings consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT



WHITMORE, P. J.
MOORE, J.
CONCUR.
                                        10



APPEARANCES:

SARAH HULBURT, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
