[Cite as State v. Shelby, 2019-Ohio-1564.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                         Court of Appeals No. WD-17-056

        Appellee                                      Trial Court No. 15 CR 453

v.

Quentrell Shelby                                      DECISION AND JUDGMENT

        Appellant                                     Decided: April 26, 2019

                                               *****

        Paul A. Dobson, Wood County Prosecuting Attorney, David T.
        Harold and Jim A. Hoppenjans, Assistant Prosecuting Attorneys,
        for appellee.

        Lawrence A. Gold, for appellant.

                                               *****

        OSOWIK, J.

                                             Introduction

        {¶ 1} This case concerns a large quantity of prescription drugs found in a vehicle

after it was stopped by the Ohio State Highway Patrol, along I-75 in Wood County. One

of the car’s occupants, appellant Quentrell Shelby, was asleep in the backseat at the time
of the stop and was observed by a state trooper to be holding a plastic bag full of drugs.

Following a jury trial in the Wood County Court of Common Pleas, appellant was

convicted of drug possession, drug trafficking and possession of criminal tools and

sentenced to four years in prison. On appeal, appellant argues that the trial court erred in

failing to give a particular jury instruction to account for the fact that appellant was

asleep at the time he was seen holding the bag. He also argues that his convictions were

not supported by legally sufficient evidence and were against the manifest weight of the

evidence. For the reasons that follow, we affirm the judgment and sentence.

                              Facts and Procedural History

       {¶ 2} The following evidence was offered at trial. In the early morning hours of

October 22, 2015, Ohio State Highway Patrol Trooper Anthony Martin was on patrol on

Interstate 75. Around 3:25 a.m., while stopped in the median of the southbound lane near

Wales Road in Wood County, Trooper Martin observed a red Jeep Cherokee speeding.

As the Jeep passed the trooper’s vehicle, the trooper observed the Jeep change lanes and

“then slowed substantially under the speed limit,” both of which Trooper Martin knew to

be “potential criminal indicators.” Trooper Martin activated his lights and initiated a

traffic stop. Trooper Martin approached the passenger-side of the Jeep where he

observed a male driver (later identified as Curtis Lee Britton III), a female passenger in

the front seat (later identified as Layke Holmes) and another male in the back seat, who

appeared to be sleeping (appellant). The trooper observed additional criminal indicators

including the fact that the Jeep was a rental vehicle that was twelve days overdue to be




2.
returned and the person who rented the vehicle was not present. In addition, the driver

(Britton) parked in a haphazard manner with the blinker still activated, suggesting that he

was distracted. Trooper Martin also observed the strong presence of deodorizer

indicating an effort to mask another scent, an unusual amount of trash in the Jeep, and the

“overly nervous” behaviors of Britton and Holmes who were “visibly shaking” and

“avoiding eye contact” with him. As Trooper Martin was observing these factors,

appellant continued to sleep in the back seat.

       {¶ 3} Trooper Martin suspected that the occupants of the car could be involved in

criminal activity, and he requested assistance from Trooper Stroud who was patrolling

the same area with a drug-sniffing dog. Evidence in the record established that illegal

drug activity along I-75 is common and that drugs are often transported from the Detroit

area to the southern states, and the money for those drugs then flows to the north. The

use of rental vehicles for the drug trade is also common.

       {¶ 4} When Trooper Stroud arrived, Trooper Martin was escorting the driver

(Britton) to Martin’s patrol car. Trooper Stroud approached the driver’s side of the

vehicle to advise the remaining occupants not to get out of the vehicle, while he and the

dog walked the perimeter of the Jeep so that the dog could conduct a “sniff.” Trooper

Stroud observed “a male in the backseat [who] appeared to be sleeping.” He testified,

“[a]s I looked around the vehicle, I noticed in [appellant’s] hands he was holding a plastic

bag. I could see plastic coming out of his right fist.” Although Trooper Stroud could not

see the contents of the bag in appellant’s “clenched” fist, he suspected that the bag was




3.
“drug packaging” which he has “seen over and over.” Trooper Stroud asked Holmes to

wake appellant, and he watched as Holmes turned to reach into the back seat. Trooper

Stroud testified that although he sensed Holmes’ deliberate attempt to obscure his view,

he did see her “push [appellant’s] right hand that was holding [the] bag * * * underneath

his body.” Appellant then “sat up,” and Trooper Stroud could see that appellant’s hands

were “now empty.” Stroud then directed appellant to sit “directly behind the driver’s

seat.” As appellant moved, the bag “sitting exactly underneath where he was just laying”

became visible.

       {¶ 5} Trooper Martin returned to the Jeep, and he too “observed the pills” which

“were packaged inside of a bag knotted on the top.” The pills, a mixture of green

capsules and blue pills, were lying “on the back passenger seat” of the Jeep. The pills

were later tested in a police lab and identified as 138 oxycodone (blue) and 79

alprazolam, a.k.a. “Xanax” (green).

       {¶ 6} After observing the pills, Trooper Martin escorted Holmes to his vehicle,

where she joined Britton. Appellant was taken to the other patrol car. Dashcam audio

from Martin’s patrol car recorded the conversation between Holmes and Britton, during

which Holmes can be heard saying, “[w]hen they pulled you out, I was sweatin the shit

out of him, and he was like ‘leave me alone,’” and “I didn’t know where they was at or I

would have grabbed them.”

       {¶ 7} Holmes, who entered into a Cooperation Agreement with the state, testified

on behalf of the prosecution. Holmes testified that she had known appellant for about




4.
three months before their arrest and that the two had a “fling.” On three previous

occasions, appellant had asked Holmes to accompany him down to Tennessee,

presumably for “illegally-related” purposes, but she had always declined, until that night.

Soon after Holmes got into the Jeep, she fell asleep. She claimed to be “tipsy” from

alcohol and Xanax. She awoke when they picked up Britton, whom she did not know.

Once the trip resumed, with Britton driving and appellant in the back seat, she fell back to

sleep. Holmes testified, “[a]fter we picked [Britton] up, I dozed off for a moment.

[Appellant] woke me up and asked me to get in the back seat with him. I told him no.

Went back to sleep. And next thing you know, [appellant] was telling * * * [me to] hand

him some baggies, which I later recall I did. * * * I handed him some baggies and fell

back asleep. And then next thing you know, [we] got pulled over.” According to

Holmes, the baggies were in an unopened pack, which she described as “those like - -

Good Sense plastic bags.”

       {¶ 8} Appellant testified in his own defense. He disputed the state’s case, that the

purpose of the trip was drug-related, and he specifically denied any knowledge that drugs

were in the vehicle that evening or how they wound up in his hand. He did not dispute

Trooper Stroud’s testimony that Stroud, in fact, observed a knotted plastic baggie in his

clenched right hand, but he added that, “I was asleep, sir, so I don’t know what [the

trooper] observed.”

       {¶ 9} The Wood County Grand Jury indicted appellant on November 19, 2015 on

five criminal counts: “Aggravated Possession of Drugs,” in violation of R.C. 2925.11(A)




5.
and (C)(1)(c), a felony of the second degree (Count 1); “Aggravated Trafficking in

Drugs,” in violation of R.C. 2925.03(A)(2) and (C)(1)(d), a felony of the second degree

(Count 2); “Possession of Drugs,” in violation of R.C, 2925.11(A) and (C)(2)(b), a felony

of the fourth degree (Count 3); “Trafficking in Drugs,” in violation of R.C. 2925.03(A)(2)

and (C)(2)(c), a felony of the fourth degree (Count 4); and “Possessing of Criminal

Tools,” in violation of R.C. 2923.24(A) and (C), a felony of the fifth degree (Count 5).

       {¶ 10} Following a two day jury trial beginning on July 25, 2017, appellant was

convicted on all counts. The state argued that Counts 1 and 2 were allied offenses of

similar import that merged for purposes of sentencing, as were Counts 3 and 4. The state

requested that the court sentence appellant as to Counts 2, 4 and 5. The court sentenced

appellant to a mandatory term of 4 years in prison as to Count 2; 12 months as to Count

4, and 12 months as to Count 5. The court ordered that the terms be served concurrently.

Appellant appealed, and through counsel, asserts three assignments of error for our

review:

              FIRST ASSIGNMENT OF ERROR: The trial court erred in failing

       to give a requested jury instruction regarding Appellant being asleep.

              SECOND ASSIGNMENT OF ERROR: The trial court erred in

       denying Appellant’s Rule 29 motion.

              THIRD ASSIGNMENT OF ERROR: The jury’s verdict was against

       the manifest weight of the evidence presented at trial.




6.
      {¶ 11} In his first assignment of error, appellant argues that the trial court erred in

failing to provide the jury with Ohio Jury Instruction CR 417.07, entitled “Coma,

blackout.” The instruction provides,

             1. DEFINED. Where a person commits an act while unconscious as

      in a (coma) (blackout) (convulsion) due to (heart failure) (disease) (sleep)

      (injury), such act is not a criminal offense even though it would be a crime

      if such act were the product of a person’s (will) (volition).

             2. CONCLUSION. If you have a reasonable doubt whether the

      defendant was conscious at the time of such act, you must find that he is not

      guilty. If you find that the defendant was conscious, such finding does not

      relieve the state of its burden of establishing by the required weight of the

      testimony (all elements of the crime charged) (any lesser included offense)

      [that the act was (purposely) (knowingly) committed].

             3. STATUTE. Reflexes, convulsions, body movements during

      unconsciousness or sleep, and body movements that are not otherwise a

      product of the actor's (will) (volition), are involuntary acts. R.C.

      2901.21(C)(2).

      {¶ 12} A trial court is “obligated to provide jury instructions that correctly and

completely state the law” when those instructions are “warranted by the evidence

presented in a case.” Cromer v. Children‘s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d

257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 22. The question of whether a jury instruction is




7.
legally correct and factually warranted is subject to de novo review. Id. We begin our

de novo review by examining the “blackout” affirmative defense. See, e.g., State v.

Ireland, Slip Opinion No. 2018-Ohio-4494, ¶ 1 (“[B]lackout is an affirmative defense

[and] requiring a defendant to provide this affirmative defense by a preponderance of the

evidence does not violate the defendant’s right to due process.”). A criminal defendant is

entitled to an instruction on an affirmative defense if he has introduced sufficient

evidence which, if believed, would raise a question in the minds of reasonable people

concerning the existence of the issue. State v. Keahey, 6th Dist. Erie No. E-13-009,

2014-Ohio-4729, ¶ 45, citing State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195

(1978), paragraph one of syllabus.

       {¶ 13} Appellant asserts that he was asleep at the time of the stop and remained

asleep “even when a baggie of pills was later seen in his hand.” He claims, therefore,

that the evidence established that he was “unconscious due to sleep” and that the “coma,

blackout” jury instruction should have been given.

       {¶ 14} We disagree. At trial, appellant did not claim to have “commit[ed] an act

while unconscious * * * that would have been a crime if such act were the product” of his

“will” or “volition,” as set forth in Ohio Jury Instruction 417.07. (Emphasis added.) To

the contrary, appellant’s argument is that an act was committed upon him, namely the

planting of drugs in his hand by another. Because there are no facts to suggest that

appellant committed an involuntary act while unconscious, the sleep instruction does not

apply. “Only those instructions which are applicable to the facts of the case should be




8.
given.” State v. Herrell, 6th Dist. Lucas No. L-16-1173, 2017-Ohio-7109, ¶ 22.

Moreover, although discussed in greater detail in response to appellant’s second

assignment of error, we note that the trial court did include a jury instruction on the term

“knowingly” which reflected appellant’s defense in this case, i.e., that drugs were

unknowingly planted on his person for which he could not be held criminally liable.

       {¶ 15} Based on the foregoing, we conclude that the trial court did not err by

refusing to provide the jury with the “Coma; blackout” jury instruction. Appellant’s first

assignment of error is not well-taken.

                         Sufficiency and Weight of the Evidence

       {¶ 16} In appellant’s second assignment of error, he argues that his convictions for

drug possession and drug trafficking were based on insufficient evidence because the

state failed to prove that he knowingly possessed the drugs. In his third assignment of

error, he argues that the convictions are against the manifest weight of the evidence.

       {¶ 17} A motion for acquittal under Crim.R. 29(A) challenges the sufficiency of

the evidence. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959,

¶ 39. The denial of a motion for acquittal under Crim.R. 29(A) “is governed by the same

standard as the one for determining whether a verdict is supported by sufficient

evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.

Sufficiency of the evidence is a legal standard that tests whether the evidence introduced

at trial is legally sufficient to support a verdict. State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541 (1997). We examine the evidence in the light most favorable to the




9.
state and decide whether any rational trier of fact could have found that the state proved,

beyond a reasonable doubt, all of the essential elements of the crime. State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), superseded by state constitutional amendment

on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997);

State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78.

       {¶ 18} Whether the evidence is legally sufficient to sustain a verdict is a question

of law. Thompkins at 386. In determining whether a conviction is based on sufficient

evidence, an appellate court does not assess whether the evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction. See

Jenks at paragraph two of the syllabus; Yarbrough at ¶ 79 (noting that courts do not

evaluate witness credibility when reviewing a sufficiency of the evidence claim).

       {¶ 19} “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘thirteenth juror’ and disagrees with the fact finder's resolution of the conflicting

testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

¶ 25, quoting Thompkins. In determining 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 the credibility of the witnesses and

determine whether, in resolving any conflicts in the evidence, the jury clearly lost its way

and thereby created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial must be ordered. Thompkins at 387, citing State v. Martin, 20




10.
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A conviction should be reversed

on manifest weight grounds only in the most “‘exceptional case in which the evidence

weighs heavily against the conviction.’” Thompkins at 387, quoting Martin at 175.

       {¶ 20} Appellant argues that he was entitled to an acquittal as to his drug

possession and trafficking convictions because the state failed to present legally sufficient

evidence that he acted with the requisite mens rea. Appellant does not challenge the

sufficiency of the evidence as to his possession of criminal tools conviction under R.C.

2923.24.

       {¶ 21} The drug possession and trafficking statutes both require the state to show

that appellant acted “knowingly.” That is, R.C. 2925.11(A) provides that “[n]o person

shall knowingly obtain, possess, or use a controlled substance or a controlled substance

analog.” Likewise, R.C. 2925.03(A)(2) provides that “[n]o person shall knowingly * * *

[p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a

controlled substance or a controlled substance analog, when the offender knows or has

reasonable cause to believe that the controlled substance or a controlled substance analog

is intended for sale or resale by the offender or another person.”

       {¶ 22} R.C. 2901.22(B) defines “knowingly” as follows:

              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. When




11.
       knowledge of the existence of a particular fact is an element of an offense,

       such knowledge is established if a person subjectively believes that there is

       a high probability of its existence and fails to make inquiry or acts with a

       conscious purpose to avoid learning the fact.

       {¶ 23} R.C. 2925.01(K) defines “possession” as “having control over a thing or

substance” but possession “may not be inferred solely from mere access to the thing or

substance through ownership or occupation of the premises upon which the thing or

substance is found.”

       {¶ 24} A court must look at all of the attendant facts and circumstances in order to

determine if a defendant knowingly possessed a controlled substance. State v. Valiente-

Mendoza, 6th Dist. Wood No. WD-16-067, 2018-Ohio-3090, ¶ 64, citing State v. Pippen,

8th Dist. Cuyahoga No. 81630, 2003-Ohio-1736, ¶ 8. Moreover, possession may be

actual or constructive. State v. Fykes, 6th Dist. Wood No. WD-07-072, 2009-Ohio-2926,

¶ 36, citing State v. Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633,

¶ 13 (4th Dist.). Actual possession occurs when the defendant has the items within his

immediate physical control, whereas constructive possession occurs when the defendant

is able to exercise dominion and control over an item, even if the individual does not

have the item within his immediate physical possession. Id. “In order for constructive

possession to exist, there must be evidence demonstrating that the defendant was

conscious of the presence of the object. Although a defendant’s mere proximity to an




12.
item is in itself insufficient to establish constructive possession, proximity to the item

may constitute some evidence of constructive possession.” Id.

       {¶ 25} With the above framework in mind, we turn to appellant’s argument that,

“by being asleep,” it could not be shown that he knowingly possessed and trafficked in

drugs. Appellant “maintains that he had no knowledge of the pills being in the vehicle,

much less in his own hands” and that “without knowledge of the pills [he] could not

possess or traffic in said pills.”

       {¶ 26} Notwithstanding that appellant may have been asleep at the time drugs

were discovered, evidence was offered at trial that, if believed, established his

constructive, if not actual possession. Indeed, Trooper Martin testified to multiple

criminal indicators, and Holmes verified that she assumed the trip was for an illegal

purpose. Importantly, appellant asked Holmes to pass him plastic baggies, which are

commonly used to package drugs. Such evidence, combined with the fact that appellant

was seen in close proximity to the drugs (whether in his hand, underneath his torso, or

lying on the back seat) establishes that appellant was conscious of the presence of drugs.

Therefore, it may be said that appellant knowingly possessed them for purposes of

satisfying the state’s burden to present legally sufficient evidence in support of the drug

possession and drug trafficking convictions. Accord State v. Williamson, 2d Dist.

Montgomery No. 27147, 2017-Ohio-7098, ¶ 58 (Ample evidence supported conclusion

that defendant knowingly possessed heroin and cocaine where police discovered bag of

heroin capsules “sitting on the passenger seat of the car” and found an additional baggie




13.
of cocaine “in the middle console of the car, in the ashtray, just below the radio [both of

which] would have been easily accessible to the driver.”).

       {¶ 27} Moreover, appellant’s argument—that either Britton or Holmes “could

have placed” the drugs into his hand—speaks to the weight, not the sufficiency of the

evidence. In reviewing a sufficiency argument, we examine the evidence in the light

most favorable to the state. Based upon the evidence described above, we find that a

rational trier of fact could have found that appellant was conscious of the drugs inside the

Jeep. Thus, we find that there was sufficient evidence that appellant knowingly

possessed and trafficked in drugs.

       {¶ 28} Appellant also argues that his convictions are against the manifest weight

of the evidence. According to appellant, his night began about 8:00 p.m. in Pontiac,

Michigan, at a friend’s house, where he got drunk on tequila and smoked marijuana.

Around 10:00 p.m., appellant asked if he could borrow the friend’s car, that had been

rented by someone else, to go buy a pack of cigarettes. The friend asked appellant to

pick up a woman, Layke Holmes, while he was out. After picking up Holmes, whom

appellant claimed never to have met, and buying cigarettes, appellant received a call from

Britton, who “sounded sad” about a “family emergency” in “Tennessee.” At trial, when

asked, “[w]hat would make you want to take a friend’s car, leave in the middle of the

night while drunk, and go across state lines with a girl you didn’t know,” appellant

replied that it was a “spur of the moment thing * * * to help out a friend who was in




14.
need.” Appellant also said that he did not really “think about all that stuff,” like where in

Tennessee they were going or whether he even had enough money to make the trip.

       {¶ 29} Appellant argues that his version of events was more plausible than

Holmes’ whom he described as a “drug addict” who did not even know his “real name.”

A conviction is not against the manifest weight of the evidence, however, merely because

the jury believed the prosecution testimony.” State v. Dean, 6th Dist. Lucas No.

L-16-1301, 2018-Ohio-1740, ¶ 44, quoting State v. Houston, 10th Dist. Franklin No.

04AP-875, 2005-Ohio-4249, ¶ 38 (reversed and remanded in part on other grounds). We

find that this is not an exceptional case in which 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, and we further find that the jury’s verdict was not against the manifest weight of

the evidence. Appellant’s second and third assignments of error are not well-taken.

                                        Conclusion

       {¶ 30} For the foregoing reasons, the judgment of the Wood County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                         Judgment affirmed.




15.
                                                               State v. Shelby
                                                               C.A. No. WD-17-056




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




16.
