[Cite as State v. Garza, 2020-Ohio-4001.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT
                                               W

STATE OF OHIO,                               :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
CHRISTOPHER J. GARZA,                        :       Case No. 2020CA00018
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No. 2019-
                                                     CR-1953



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    August 6, 2020



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      KENNETH STAIDUHAR
Prosecuting Attorney                                 Henderson, Mokhtari & Weatherly
Stark County, Ohio                                   1231 Superior Ave
                                                     Cleveland, Ohio 44114
By: KRISTINE W. BEARD
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1416
Stark County, Case No. 2020CA00018                                                   2


Baldwin, J.

        {¶1}   Defendant-appellant Christopher Garza appeals his conviction and

sentence from the Stark County Court of Common Pleas. Plaintiff-appellee is the State of

Ohio.

                        STATEMENT OF THE FACTS AND CASE

        {¶2}   On October 22, 2019, the Stark County Grand Jury indicted appellant on

one count of aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1)(c), a

felony of the second degree. At his arraignment, appellant pleaded not guilty to the

charge.

        {¶3}   Thereafter, a jury trial commenced on December 10, 2019. At the trial,

Officer Yuri Vovk of the Jackson Police Department testified that on September 19, 2019

he was dispatched to an address in Jackson Township in response to a possible burglary

in progress. The call had indicated that copper pipe and other household items were being

taken out of the residence. When he arrived, the front door was open. Officer Vovk

knocked on the door and announced his presence, but no one responded. He then

noticed a white male walking towards the kitchen. The man refused to come out and

speak with the officer, so Officer Vovk decided to enter the residence and detain the man

for further investigation.

        {¶4}   Once inside the house, Officer Vovk noticed another man sitting in the living

room and there were multiple items of drug paraphernalia around the house. The drug

items were not tagged into evidence. One of the officers heard someone moving upstairs

and as he headed upstairs, identified himself and asked if anyone else was in house.

There was no response. A further search of the house yielded a male located in an
Stark County, Case No. 2020CA00018                                                  3


upstairs bedroom in a small closet underneath a blanket. Two or three baggies with a

crystal like substance were located on the closet floor. The drugs were located behind a

board that was leaning against the wall of the small closet. No illegal substances were

found on appellant. No one else was in the room.

       {¶5}   Officer Vovk testified that the house was considered a drug house by his

department and that he did not believe that the house was appellant’s residence. There

had been a prior burglary at the house.

       {¶6}   Officer Christopher Bader of the Jackson Police Department testified that

he worked with Officer Vovk and found appellant hiding underneath a blanket in the corner

of the closet. Appellant told him that he was sleeping in the closet. When he moved the

board in the closet aside, he found two bags of what he believed to be methamphetamines

in the closet and collected them as evidence. The Stark County Crime Lab later confirmed

that the drugs were methamphetamines. He testified that the homeowner later appeared

and verified that the three individuals, including appellant, in the house had permission to

be there. Officer Bader testified that he did not see any of the drug paraphernalia that

Officer Vovk had said was sitting out in the house. Officer Bader testified that appellant

had later told him that he was at the house to sell a computer and there was, in fact, a

computer there. The computer was submitted into evidence. The homeowner told the

officer that a total of five individuals were allowed to be in the home during the time that

they searched the home. The officers only located three people. He admitted that

appellant could have been hiding in the closet because he had an active warrant. He did

not ask for any fingerprint or DNA testing on the bags containing the drugs to see if

appellant had placed the drugs in the closet or come into any contact with the drugs.
Stark County, Case No. 2020CA00018                                                 4


       {¶7}   Forensic testing of the bags concluded that one of the bags contained

approximately 13.9 grams of methamphetamine while the other contained 1.58 grams.

       {¶8}   At the conclusion of the evidence and the end of deliberations, the jury

found appellant guilty. Appellant was sentenced to six to nine years in prison and ordered

to serve three (3) years of post-release control.

       {¶9}   Appellant now appeals, raising the following assignments of error on

appeal:

       {¶10} “I. APPELLANT’S CONVICTION FOR AGGRAVATED POSSESSION IS

NOT SUPPORTED BY SUFFICIENT EVIDENCE.”

       {¶11} “II. APPELLANT’S CONVICTION FOR AGGRAVATED POSSESSION IS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶12} “III. TRIAL COUNSEL WAS INEFFECTIVE AND TRIAL COUNSEL’S

INEFFECTIVENESS PREJUDICED APPELLANT WHEN HE FAILED TO FILE A

MOTION FOR DNA TESTING.”

                                            I, II

       {¶13} Appellant, in his first two assignments of error, argue that appellant’s

conviction for aggravated possession of drugs is not supported by sufficient evidence and

is against the manifest weight of the evidence. We disagree.

       {¶14} On review for sufficiency, this court is to examine the evidence at trial to

determine whether such evidence, if believed, would support a conviction. State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “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.”
Stark County, Case No. 2020CA00018                                                  5


Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979). 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, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983). 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.

      {¶15} Appellant was convicted of aggravated possession of drugs in violation of

R.C. 2925.11(A)(C)(1)(c). R.C 2925.11(A) states that “(A) No person shall knowingly

obtain, possess, or use a controlled substance or a controlled substance analog.”

      {¶16} In this case, the drugs were not found on appellant’s person and he did not

admit that he obtained, possessed or used them. However, possession may be actual or

constructive. State v. Butler, 42 Ohio St.3d 174, 176, 538 N.E.2d 98(1989). To establish

constructive possession, the evidence must prove that the defendant was able to exercise

dominion and control over the contraband. State v. Wolery, 46 Ohio St.2d 316, 332, 348

N.E.2d 351(1976). Dominion and control may be proven by circumstantial evidence

alone. State v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93 (8th Dist. 2000).

Circumstantial evidence that the defendant was located in very close proximity to the

contraband may show constructive possession. State v. Butler, supra; State v. Morales,

5th Dist. Licking No. 2004 CA 68, 2005-Ohio-4714, ¶ 50.
Stark County, Case No. 2020CA00018                                                    6


       {¶17} In the case sub judice, appellant was found in a small upstairs closet in a

known drug house. No one else was upstairs. When the officers yelled to determine if

anyone was present upstairs after hearing someone moving upstairs, appellant did not

respond. The drugs were found in close proximity to appellant under a board. The jury

could infer that appellant knew about and exercised dominion and control over the drugs.

While appellant said that he was at the house to get some sleep and later said that he

was there to sell a computer, the jury, as trier to fact, was free to believe or disbelieve

appellant’s explanations. They are also free to disbelieve that appellant was hiding from

a warrant.

       {¶18} We find that, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found that appellant knowingly possessed

the drugs. We further find that the jury did not clearly lose its way in convicting appellant.

       {¶19} Appellant’s first and second assignments of error are, therefore, overruled.

                                             III

       {¶20} Appellant, in his third assignment of error, argues that his trial counsel was

ineffective in failing to request DNA testing on the bags of methamphetamines.

       {¶21} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Ohio

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective

assistance of counsel. First, we must determine whether counsel's assistance was

ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the
Stark County, Case No. 2020CA00018                                                  7


client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing that there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id. However, trial counsel is entitled to a strong presumption that all

decisions fall within the wide range of reasonable professional assistance. State v. Sallie,

81 Ohio St.3d 673, 675, 1998-Ohio-343, 693 N.E.2d 267.

       {¶22} We concur with appellee that appellant has failed to show how DNA testing

would have affected the outcome of appellant’s case and that it is purely speculative that

it would have resolved this issue in appellant’s favor. There is nothing in the record as to

what any DNA testing would have revealed so we cannot say that counsel was ineffective

in failing to file a motion for DNA testing or that appellant was prejudiced.

       {¶23} Appellant’s third assignment of error is, therefore, overruled.
Stark County, Case No. 2020CA00018                                         8


      {¶24} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.
