[Cite as State v. Rowe, 2016-Ohio-5395.]


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

STATE OF OHIO                                       C.A. No.    27870

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
JEREMIAH N. ROWE                                    COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 2013 02 0424 (B)

                                 DECISION AND JOURNAL ENTRY

Dated: August 17, 2016



        MOORE, Judge.

        {¶1}     Defendant-Appellant Jeremiah N. Rowe appeals from the judgment of the

Summit County Court of Common Pleas. We affirm.

                                               I.

        {¶2}     In 2013, Mr. Rowe was indicted in a multi-count indictment, which was later

supplemented, involving charges concerning events occurring on two separate dates: November

24, 2012, and February 11, 2013. The November 24, 2012 incident involved a shooting at

business and the February 11, 2013 incident involved the execution of a search warrant at a

residence on Maxen Drive in Akron based upon suspected drug trafficking. With respect to the

November 24, 2012 incident, Mr. Rowe was charged with improperly discharging a firearm at or

into a habitation, along with an accompanying firearm specification, and having weapons while

under disability. With respect to the February 11, 2013 incident, Mr. Rowe was charged with
                                                2


trafficking in heroin, possession of heroin, possession of marijuana, and two counts of having

weapons while under disability.

       {¶3}    While Mr. Rowe initially entered a guilty plea, he was later allowed to withdraw

it. The matter proceeded to a jury trial on all counts aside from the possession of marijuana

charge, which was tried to the court. The trial court granted Mr. Rowe’s Crim.R. 29 motion with

respect to the charge of improperly discharging a firearm at or into a habitation, and the charge

and the accompanying firearm specification were dismissed. Mr. Rowe was found not guilty of

trafficking in heroin and the jury was unable to reach a verdict on the count for having weapons

while under disability related to the November 24, 2012 incident. The State elected to dismiss

the latter charge. The jury found Mr. Rowe guilty of possession of heroin and two counts of

having a weapon while under disability related to the February 11, 2013 incident. The trial court

found Mr. Rowe guilty of the possession of marijuana count. Thus, Mr. Rowe was not convicted

of any offenses related to the November 24, 2012 incident. Mr. Rowe was sentenced to a total of

10 years in prison.

       {¶4}    As the trial court failed, on more than one occasion, to impose a sentence on the

possession of marijuana count, Mr. Rowe’s prior attempted appeals were dismissed. See State v.

Rowe, 9th Dist. Summit No. 27778 (May 20, 2015). Following the issuance of a final appealable

order, Mr. Rowe has again appealed, raising two assignments of error for our review, which will

be addressed out of sequence to facilitate our review.

                                                II.

                                  ASSIGNMENT OF ERROR II

       THE JURY VERDICT FINDING MR. ROWE GUILTY OF POSSESSION OF
       HEROIN AND WEAPONS UNDER DISABILITY WAS AGAINST THE
       SUFFICIENCY OF THE EVIDENCE.
                                                   3


        {¶5}   Mr. Rowe argues in his second assignment of error that there was insufficient

evidence for a jury to find him guilty of possession of heroin and having weapons while under

disability.

        {¶6}   The issue of whether a conviction is supported by sufficient evidence is a question

of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

        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.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

        {¶7}   Mr. Rowe was found guilty of possession of heroin in violation of R.C.

2925.11(A), (C)(6) and two counts of having weapons while under disability, one in violation of

R.C. 2923.13(A)(2)/(3) and one in violation of R.C. 2923.13(A)(1). Each of these counts

involved events that took place on February 11, 2013. While Mr. Rowe appears to assert that he

was found guilty of having weapons while under disability with respect to the events of

November 24, 2012, such is not the case. The jury was unable to reach a verdict on that count,

and it was subsequently dismissed. Accordingly, to that extent, Mr. Rowe’s argument is without

merit as he was not found guilty of that charge.

        {¶8}   On appeal, Mr. Rowe appears to only challenge whether there was sufficient

evidence that the heroin and firearm were his. There is no dispute that the items were not found

on Mr. Rowe’s person. Thus, Mr. Rowe’s argument is that there was insufficient evidence that

he constructively possessed the heroin and the firearm. R.C. 2925.11(A) and (C)(6), when

considered together, provide that “[n]o person shall knowingly obtain, possess, or use” heroin.
                                                    4


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). R.C. 2923.13(A)(1)-(3) provides that:

       Unless relieved from disability under operation of law or legal process, no person
       shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if
       any of the following apply:

       (1) The person is a fugitive from justice.

       (2) The person is under indictment for or has been convicted of any felony offense
       of violence or has been adjudicated a delinquent child for the commission of an
       offense that, if committed by an adult, would have been a felony offense of
       violence.

       (3) The person is under indictment for or has been convicted of any felony offense
       involving the illegal possession, use, sale, administration, distribution, or
       trafficking in any drug of abuse or has been adjudicated a delinquent child for the
       commission of an offense that, if committed by an adult, would have been a
       felony offense involving the illegal possession, use, sale, administration,
       distribution, or trafficking in any drug of abuse.

       {¶9}     “This Court has repeatedly held that a person may knowingly possess a substance

or object through either actual or constructive possession.” (Internal quotations and citations

omitted.)     State v. Ibrahim, 9th Dist. Medina No. 12CA0048-M, 2013-Ohio-983, ¶ 8.

“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.”

(Internal quotations and citations omitted.)            Id.; State v. Tucker, 9th Dist. Lorain No.

13CA010339, 2016-Ohio-1353, ¶ 21. “This Court continues to recognize that the crucial issue

is not whether the accused had actual physical contact with the article concerned, but whether the

accused was capable of exercising dominion [and] control over it.” (Internal quotations and

citations omitted)   Id.   Notwithstanding the foregoing, with respect to drug possession,

“constructive possession may be inferred from the drug[’s] presence in a usable form and in

close proximity to the defendant.” (Citations omitted.) Id. Additionally, “[p]ossession of a drug
                                                5


includes possessing individually, or jointly with another person. Joint possession exists when

two or more persons together have the ability to control an object, exclusive of others.” (Internal

quotations and citation omitted.) State v. Fletcher, 9th Dist. Summit No. 23171, 2007-Ohio-146,

¶ 20.

        {¶10} After police received complaints of drug dealing at the address on Maxen Drive,

police began to investigate the location. Detective Tim Harvey, then with the Street Narcotic

Uniform Detail (“SNUD”) unit of the Akron Police Department, testified that he began the

investigation approximately a week prior to the search.         During that time, a confidential

informant made a couple of controlled purchases of marijuana from Mr. Rowe at the Maxen

Drive residence. Only marijuana was ever purchased during the controlled buys. Through

statements made by the informant and Tisha Gindraw, the named lessee of the residence, who

was not living at the residence at the time, Detective Harvey learned that Mr. Rowe was living at

Maxen Drive. Ms. Gindraw was the girlfriend of one of Mr. Rowe’s brothers. Thus, Mr. Rowe

was the target of the investigation.    Based upon the controlled purchases and information

provided by the confidential informant, Detective Harvey was issued a warrant to search the

residence.   At the time, Mr. Rowe had warrants outstanding for his arrest related to the

November 24, 2012 shooting at a business.

        {¶11} Detective Brian Nida with the SNUD unit testified that, on February 11, 2013, he

was part of a team that was conducting pre-search warrant surveillance of the Maxen Drive

residence. That day he was partnered with Detective Ted Male. The team was going to wait

until Mr. Rowe left in a vehicle, follow him, and then conduct a traffic stop. Thereafter, police

would execute the search warrant.
                                               6


       {¶12} Undercover units observed a vehicle leaving the residence; however, it was not

determined who was in the vehicle. Uniformed members of the team, including Detectives Nida

and Male, attempted to stop the vehicle, but it fled and led officers on a high-speed chase.

Ultimately, the driver of the vehicle, Garland Phelps, was apprehended after he fled on foot into

the backyard of the residence on Maxen Drive.         Mr. Phelps was a known heroin dealer.

Approximately $5400 was recovered from his person.

       {¶13} After Mr. Phelps was apprehended, police conducted a search of the residence at

Maxen Drive.     A surveillance camera was recovered from outside the residence and a

refrigerator was found wedged against the door impeding entry. Upon entry, two 17-18 year-old

males were found playing video games on the couch. One of the individuals told Detective

Harvey that he was visiting his brother, Mr. Rowe.1 Two photographs that included Mr. Rowe

were found, one in the kitchen and one in the living room. A butter knife with cocaine residue

was found in the kitchen cupboard and four digital scales were found in the residence.

Additionally, approximately 50 grams of marijuana was found in a trash can.

       {¶14} Inside the northeast bedroom, 2 small bindles of heroin were found in the register,

and inside a bag near the entrance of the closet in that bedroom, covered by some clothes, police

found a larger amount of heroin and a .380 semi-automatic pistol. Also in that bedroom, officers

discovered a car rental agreement with Mr. Rowe’s mother’s name on it.            That bedroom

contained access to the attic, which in turn provided access to the roof.        Mr. Rowe was

apprehended from the roof of the residence. Detective Male estimated that Mr. Rowe was found

approximately 20 feet above where the heroin and firearm were discovered.


       1
          Mr. Rowe testified that the individual was not technically related to him, but they
nonetheless referred to each other as brothers because Mr. Rowe was dating the individual’s
sister. For ease of discussion, we will refer to him as Mr. Rowe’s brother.
                                                7


          {¶15} Sergeant Jason Malick of the narcotics unit of the Akron Police Department

estimated that the street value of the heroin found in the bedroom was approximately between

$5,000 to $10,000. Detective Harvey acknowledged that an amount of money in that range was

found on Mr. Phelps.

          {¶16} Also admitted into evidence were judgment entries of three of Mr. Rowe’s prior

convictions, two for possession of cocaine, and one for aggravated assault, along with a criminal

gang specification, as well as the laboratory results confirming the substances found included

heroin.

          {¶17} Mr. Rowe testified in his own defense about the events of February 11, 2013. At

the time, he asserted that he was living on West Thornton Street with his mother and not Maxen

Drive. He admitting to selling marijuana and indicated that he sold it out of the Maxen Drive

house because he did not want to sell drugs out of his mother’s house. Mr. Rowe denied selling

cocaine or heroin. He further denied having any involvement with heroin.

          {¶18} On February 11, 2013, Mr. Rowe stated that his brother got a call from Mr.

Phelps wanting to buy marijuana. Prior to that day, Mr. Rowe indicated he did not know Mr.

Phelps. When Mr. Phelps arrived, he repeatedly made comments Mr. Rowe interpreted to mean

that there were a lot of police officers in the area. He told Mr. Rowe how much marijuana he

wanted to buy and Mr. Rowe went to weigh it. While he was weighing the marijuana, Mr.

Rowe’s brother and the other individual went into the northeast bedroom and closed the door.

When they came out, Mr. Rowe stated that he overheard Mr. Phelps say, “I need to put

something up[,]” and that he would be back to get it. Mr. Rowe’s brother and the other

individual agreed.
                                               8


        {¶19} After Mr. Phelps left, Mr. Rowe noticed what he believed to be police officers

outside the residence. At that point, he discarded the marijuana he had in the trash and he

decided to flee. He opted to attempt to escape via the roof, which he accessed through the attic

through the northeast bedroom; however, police observed him on the roof. Mr. Rowe indicated

that he was attempting to flee because of the outstanding warrants related to the November 24,

2012 incident; not because of the contraband in the Maxen Drive residence. Mr. Rowe denied

that the gun and heroin found in the bedroom were his, and instead testified that they must have

been Mr. Phelps’. While this theory of the case was argued to the jury, it was unavailing to Mr.

Rowe.

        {¶20} After viewing the evidence in a light most favorable to the prosecution, we

conclude that the State presented sufficient evidence whereby a jury could reasonably find that

Mr. Rowe constructively possessed the heroin and firearm found during the search of the

residence on Maxen Drive. See Ibrahim, 2013-Ohio-983, at ¶ 8; Tucker, 2016-Ohio-1353, at ¶

21.

        {¶21} There was evidence that Mr. Rowe lived at the residence, and there was also

evidence tying Mr. Rowe to the bedroom where the heroin and firearm were found. See Tucker

at ¶ 24 (summarizing cases where constructive possession of a firearm was established). Thus,

there was circumstantial evidence that Mr. Rowe knowingly exercised dominion and control

over the heroin and firearm. Ibrahim at ¶ 8; Tucker at ¶ 21. The only document admitted into

evidence found in the bedroom was a car rental lease with Mr. Rowe’s mother’s name on it. Mr.

Rowe admittedly sold marijuana out of the residence and, according to Detective Harvey’s

source, lived at the residence. Photographs of Mr. Rowe were found in the residence. Mr. Rowe

was found on the roof, which was accessed by going through the attic, which was reached
                                                 9


through the bedroom containing the heroin and firearm. Mr. Rowe himself admitted to going

through the bedroom, to the attic, in order to escape through the roof. Thus, there was evidence

that Mr. Rowe had recently accessed the bedroom and had knowledge of how to access the attic

and roof. There was also evidence that Mr. Rowe opted to flee while the other two individuals

remained on the couch in the living room. See State v. Clayton, 9th Dist. Summit No. 27352,

2015-Ohio-498, ¶ 17 (noting flight can be evidence of consciousness of guilt). And while there

were two other individuals found at the residence at the time, there was evidence that at least Mr.

Rowe’s brother was just visiting him. Thus, we conclude that the State presented sufficient

evidence, if believed, whereby a jury could find that Mr. Rowe constructively possessed the

heroin and firearm.

       {¶22} We overrule Mr. Rowe’s second assignment of error.

                                 ASSIGNMENT OF ERROR I

       MR. ROWE’S CONVICTIONS WERE CONTRARY TO THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶23} Mr. Rowe asserts in his first assignment of error that his convictions for

possession of heroin and having weapons while under disability were against the manifest weight

of the evidence. He does not appear to challenge his conviction for the possession of marijuana.

       {¶24} When a defendant asserts that his conviction is against the manifest weight of the

evidence:

       an appellate court must 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).
                                               10


       {¶25} Much of Mr. Rowe’s attention in his merit brief is focused on attacking the

credibility of witnesses involved in the November 24, 2012 incident. However, Mr. Rowe was

not convicted of any offense related to that incident. Accordingly, we again limit our discussion

to his convictions for possession of heroin and having weapons while under disability that arose

out of the February 11, 2013 search of the residence on Maxen Drive.

       {¶26} Mr. Rowe’s argument is essentially that the weight of the evidence supports the

conclusion that someone other than Mr. Rowe possessed the heroin and the firearm. At trial,

during the cross-examination of Detective Harvey, Mr. Rowe’s counsel submitted as evidence an

indictment naming Mr. Rowe’s brother, as well as a plea entered by Mr. Rowe’s brother, to

possession of heroin and possession of marijuana. On appeal, Mr. Rowe asserts that the heroin

mentioned in the indictment and plea was the same heroin found at the Maxen Drive residence.

Thus, according to Mr. Rowe, if his brother possessed the heroin, Mr. Rowe could not have.

       {¶27} First, we note that Mr. Rowe has cited no law that would support that proposition.

See State v. Deem, 9th Dist. Summit No. 26761, 2013-Ohio-5227, ¶ 10, quoting State v.

Figueroa, 9th Dist. Summit No. 22208, 2005-Ohio-1132, ¶ 8. (noting that “[p]ossession of a

drug includes possessing individually or jointly with another person. Joint possession exists

when two or more persons together have the ability to control an object, exclusive of others.”)

Second, the record does not factually support Mr. Rowe’s claim. The indictment involving Mr.

Rowe’s brother lists May 9, 2013, as the date that Mr. Rowe’s brother possessed the heroin. The

search of the residence on Maxen Drive occurred on February 11, 2013, and that heroin was

confiscated by the police, and submitted into evidence at trial. Thus, the heroin for which Mr.

Rowe’s brother was indicted for possessing could not be the same heroin as that found during the

search of the Maxen Drive residence.
                                                 11


       {¶28} Mr. Rowe additionally argues that the weight of the evidence supported that the

firearm and heroin belonged to Mr. Phelps and not to Mr. Rowe. Thus, Mr. Rowe essentially

asserts that his testimony was more credible, than that presented by the State’s witnesses. Mr.

Rowe posits that his version of events is more credible because it is more likely that Mr. Phelps,

who was a known heroin dealer, and who had just left the property, hid the heroin and firearm at

the Maxen Drive residence after he realized police were in the area, than that Mr. Rowe, who had

no prior known association with heroin, possessed the heroin and firearm. This Court recognizes

that “the trier of fact is in the best position to determine the credibility of witnesses and evaluate

their testimony accordingly.” (Internal quotations and citation omitted.) State v. Tabassum, 9th

Dist. Summit No. 25568, 2011-Ohio-6790, ¶ 26. “It is well-settled that the [trier of fact] is free

to believe all, part, or none of the testimony of each witness.” (Internal quotations and citation

omitted.) State v. Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 24. We note that the

jury was aware that Mr. Phelps was stopped with over $5,000 on his person; an amount that

Detective Harvey testified would have been within the range for the street value of the amount of

heroin found in the Maxen Drive residence. Thus, it would not have been unreasonable, in light

of the other evidence discussed above, for the jury to conclude that Mr. Rowe possessed the

heroin and firearm. The jury was also aware of Mr. Rowe’s prior convictions, which also could

have altered the jury’s perception of Mr. Rowe’s credibility. Accordingly, after thoroughly and

independently reviewing the record, and given Mr. Rowe’s arguments on appeal, we cannot say

the jury lost its way in finding him guilty of possession of heroin and having weapons while

under disability.

       {¶29} Mr. Rowe’s first assignment of error is overruled.
                                                12


                                                III.

       {¶30} Mr. Rowe’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       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 to Appellant.




                                                       CARLA MOORE
                                                       FOR THE COURT



CARR, P. J.
CELEBREZZE, J.
CONCUR.

(Celebrezze, J., of the Eighth District Court of Appeals, sitting by assignment.)
                                         13


APPEARANCES:

JASON D. WALLACE, Attorney at Law, for Appellant.

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