[Cite as State v. Corson, 2015-Ohio-5332.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             PICKAWAY COUNTY

STATE OF OHIO,                 :
                               :    Case No. 15CA4
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
ERIC J. CORSON,                :
                               :
    Defendant-Appellant.       :    Released: 12/10/15
_____________________________________________________________
                         APPEARANCES:

Jesse A. Atkins, Atkins and Atkins, Attorneys at Law, LLC, Circleville,
Ohio, for Appellant.

Judy C. Wolford, Pickaway County Prosecutor, and Heather MJ Armstrong,
Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
_____________________________________________________________

McFarland, A.J.

        {¶1} Eric J. Corson appeals his conviction in the Pickaway County

Court of Common Pleas after a jury found him guilty of one count of

possession of cocaine, R.C. 2925.11(A)(C)(4)(a), a fifth-degree felony. On

appeal, Appellant asserts his conviction was against the manifest weight of

the evidence. Upon review, we find no merit to Appellant’s argument. The

trial court did not err. Accordingly, we overrule Appellant’s sole assignment

of error and affirm the judgment of the trial court.
Pickaway App. No. 15CA4                                                       2

                                  FACTS

      {¶2} On August 3, 2014, Appellant was indicted on one count of

possession of cocaine, a violation of R.C. 2925.11(A)(C)(4)(a), a felony of

the fifth degree. The indictment arose from activities which occurred on or

about February 29, 2012, when Appellant made contact with Sergeant

Dillard, a 20-year veteran of the Ohio State Highway Patrol, during a lawful

traffic stop for speeding on S.R. 104 in Pickaway County.

      {¶3} During the stop, Sgt. Dillard detected the odor of marijuana

coming from the vehicle. Appellant had one passenger, Zanisha Marshall,

his girlfriend or fiancé. Both Appellant and Marshall were removed from

the car and it was searched. Eventually, Marshall acknowledged having a

baggie of marijuana in her bra and a baggie of cocaine in her vagina. The

items were removed. Both individuals were brought to the Pickaway

County Jail and charged with drug offenses. The suspected drugs were sent

to the Ohio State Highway Patrol Crime Lab and tested. The baggie of

suspected cocaine tested positive for 2.73 grams of crack cocaine.

      {¶4} On December 2, 2014, Appellant was arraigned. He pleaded not

guilty. At the time of the arraignment, Appellant was incarcerated. The

matter proceeded to jury trial on February 19, 2014. The trial returned a

verdict of guilty.
Pickaway App. No. 15CA4                                                        3

       {¶5} Appellant was sentenced to a ten-month term of imprisonment,

to be served consecutively to time he was already serving for an offense

arising out of Franklin County, Ohio. Therefore, Appellant’s original

release date of July 13, 2015 on the Franklin County offense had been

delayed until May 13, 2016 due to the addition of the Pickaway County

conviction.

       {¶6} This timely appeal followed. Where relevant, additional facts

will be related below.

                          ASSIGNMENT OF ERROR

       “I. THE APPELLANT’S CONVICTION FOR POSSESSION
       OF DRUGS, A FELONY OF THE FIFTH DEGREE, WAS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                         A. STANDARD OF REVIEW

       {¶7} When an appellate court considers a claim that a conviction is

against the manifest weight of the evidence, the court must dutifully

examine the entire record, weigh the evidence, and consider the credibility

of witnesses. The reviewing court must bear in mind however, that

credibility generally is an issue for the trier of fact to resolve. State v.

Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶ 25; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th

Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “ ‘Because the trier of
Pickaway App. No. 15CA4                                                          4

fact sees and hears the witnesses and is particularly competent to decide

“whether, and to what extent, to credit the testimony of particular

witnesses,” we must afford substantial deference to its determinations of

credibility.’ ” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929

N.E.2d 1047, ¶ 20, quoting State v. Konya, 2nd Dist. Montgomery No.

21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2nd Dist.

Montgomery No. 16288 (Aug. 22, 1997). As explained in Eastley v.

Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517:

       “ ‘[I]n determining whether the judgment below is manifestly
      against the weight of the evidence, every reasonable intendment
      must be made in favor of the judgment and the finding of facts.

      ***

      If the evidence is susceptible of more than one construction, the
      reviewing court is bound to give it that interpretation which is
      consistent with the verdict and judgment, most favorable to
      sustaining the verdict and judgment.’ ” Eastley at ¶ 21, quoting
      Seasons Coal Co., Inc. v. Cleveland,10 Ohio St.3d 77, 80, 461
      N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d,
      Appellate Review, Section 60, at 191-192 (1978).

      {¶8} Thus, an appellate court will leave the issues of weight and

credibility of the evidence to the fact finder, as long as a rational basis exists

in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No.

11CA9, 2012-Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No.

07CA2948, 2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier
Pickaway App. No. 15CA4                                                         5

of fact has some factual and rational basis for its determination of credibility

and weight.”).

      {¶9} Once the reviewing court finishes its examination, the court may

reverse the judgment of conviction only if it appears that the fact-finder,

when resolving the conflicts in evidence, “ ‘clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered .’ ” Wickersham, supra, at 26, quoting Thompkins,

78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist. 1983). A reviewing court should find a conviction

against the manifest weight of the evidence only in the “ ‘exceptional case in

which the evidence weighs heavily against the conviction.’ ” Id., quoting

Martin, 20 Ohio App.3d at 175; State v. Lindsey, 87 Ohio St.3d 479, 483,

721 N.E.2d 995 (2000).

                           B. LEGAL ANALYSIS

      {¶10} Appellant was convicted of R.C. 2925.11(A)(C)(4)(a),

possession of cocaine, which provides:

      (A) No person shall knowingly obtain, possess, or use a
      controlled substance or a controlled substance analog.

      ***

      (C) Whoever violates division (A) of this section is guilty of
      one of the following:
Pickaway App. No. 15CA4                                                          6

      ***

      (4) If the drug involved in the violation is cocaine or a
      compound, mixture, preparation, or substance containing
      cocaine, whoever violates division (A) of this section is guilty
      of possession of cocaine. The penalty for the offense shall be
      determined as follows:

      (a) Except as otherwise provided in division (C)(4)(b), (c), (d),
      (e), or (f) of this section, possession of cocaine is a felony of the
      fifth degree, and division (B) of section 2929.13 of the Revised
      Code applies in determining whether to impose a prison term
      on the offender.

      {¶11} Appellant contends that the jury had to either find Appellant

actually or constructively possessed the cocaine that was discovered in

Zanisha Marshall’s vagina on the date of their arrest. Appellant argues since

the jury most likely did not determine he actually possessed the cocaine, it

may be assumed that the jury determined he constructively possessed it.

Appellant points out the trial court’s instructions to the jury did not define

either the words “actual” or “constructive.” Appellant concludes it appears

that the jury was confused about the definitions and therefore lost its way in

reaching a guilty verdict.

      {¶12} Appellee concedes that Appellant did not actually possess the

crack cocaine, but argues Appellant still had control over it. While agreeing

that mere presence and knowledge of an illegal substance has been found to

be insufficient to establish constructive possession, Appellee argues the
Pickaway App. No. 15CA4                                                          7

evidence at trial established that Appellant had control over the substance.

Appellee emphasizes that through the testimony of Sgt. Dillard, the essential

elements of the offense were established beyond a reasonable doubt.

Appellee concludes the jury did not clearly lose its way.

      {¶13} “In determining whether a defendant knowingly possessed a

controlled substance, it is necessary to examine the totality of the facts and

circumstances surrounding its discovery.” State v. Ruppen, ¶ 28, quoting

Pullen at ¶ 37; citing State v. Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d

1049 (1998); State v. Pounds, 2nd Dist. Montgomery No. 21257, 2006-

Ohio-3040. “[P]ossession” is defined as “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). State v. Criswell, 4th Dist.

Scioto No. 13CA3588, 2014-Ohio-3941, at ¶ 9. “Possession may be actual

or constructive.” Id., quoting State v. Moon, 4th Dist. Adams No. 08CA875,

2009-Ohio-4830, ¶ 19, citing State v. Butler, 42 Ohio St.3d 174,175, 538

N.E.2d 98 (1989) (“[t]o constitute possession, it is sufficient that the

defendant has constructive possession”). “ ‘Actual possession exists when

the circumstances indicate that an individual has or had an item within his

immediate physical possession.’ ” Criswell, supra, at ¶ 10, quoting, State v.
Pickaway App. No. 15CA4                                                        8

Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13

(4th Dist.), quoting State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-

5747, ¶ 39. “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.” Criswell, supra, quoting

State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus;

State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For

constructive possession to exist, the state must show that the defendant was

conscious of the object's presence. Hankerson at 91; Kingsland at ¶ 13.

Both dominion and control, and whether a person was conscious of the

object's presence may be established through circumstantial evidence.

Crisell, supra; Brown at ¶ 19. “Moreover, two or more persons may have

joint constructive possession of the same object.” Criswell, supra.

      {¶14} “Although a defendant's mere proximity is in itself insufficient

to establish constructive possession, proximity to the object may constitute

some evidence of constructive possession. * * * Thus, presence in the

vicinity of contraband, coupled with another factor or factors probative of

dominion or control over the contraband, may establish constructive

possession.” Criswell, supra, at ¶ 11, quoting Kingsland at ¶ 13.
Pickaway App. No. 15CA4                                                                           9

           {¶15} At Appellant’s trial, the State presented only the testimony of

Sgt. Dillard and “Exhibit A, “the Ohio State Highway Patrol lab report

which demonstrated that the white substance in the baggie was crack

cocaine.1 Sgt. Dillard testified he first noticed Appellant on State Route 104

in Pickaway County when he “clocked” him going over the speed limit at

61m.p.h. He initiated a traffic stop and activated his lights. As he pulled up

behind the vehicle, he could see the right front passenger, a female, arch her

back severely and appear to be shoving something inside her groin area.

           {¶16} Sgt. Dillard approached the passenger’s side of the vehicle. He

further testified when he knelt down toward the lowered passenger window,

he could detect the odor of burnt marijuana coming from the vehicle. He

immediately radioed back to the patrol post for assistance and waited. When

Lt. Cassandra Kocab arrived, they removed both Appellant, the driver, and

Zanisha Marshall, the passenger, and secured them in separate cruisers.

           {¶17} Sgt. Dillard testified the officers searched the vehicle based

upon the odor of marijuana. They found a small baggie of marijuana in

Marshall’s purse. They found Cigarillo cigars and digital scales in the glove

box. Based on those findings, they searched the occupants.




1
    Sgt. Dillard testified the report showed “generally speaking, 2.73 grams of crack cocaine.”
Pickaway App. No. 15CA4                                                                                10

         {¶18} Sgt. Dillard testified Appellant and Marshall were asked if they

had other contraband on their persons. Both denied having any illegal items.

Sgt. Dillard further explained to them that if anything contraband was

hidden, once they arrived at the jail it became a felony charge of “taking

contraband into a prison or jail facility.”2

         {¶19} The parties, as previously indicated, had been placed in

separate cruisers. Lt. Kocab performed the search of Marshall. Sgt. Dillard

testified that marijuana was removed from Marshall’s bra, and the crack

cocaine was removed from Marshall’s vagina. Sgt. Dillard then showed

Appellant the baggie and asked Appellant if he knew that Marshall

possessed the cocaine. Sgt. Dillard testified he could not recall what

Marshall told him at that time.

         {¶20} State’s Exhibit A, the lab report, was admitted into evidence.

The parties stipulated to Exhibit A’s authenticity and admissibility.

         {¶21} Sgt. Dillard further testified Appellant and Marshall were taken

to the jail. They were both charged with possession of marijuana and crack

cocaine. Sgt. Dillard’s direct examination essentially concluded with this

testimony:




2
  R.C. 2921.36 provides that illegal conveyance of drugs onto the grounds of a detention facility or
institution is a felony of the third degree.
Pickaway App. No. 15CA4                                                      11

      “I was typing the charges up inside the room, and as I walked
      out, the defendant, Mr. Corson, advised me that he didn’t want,
      I believe it was his girlfriend at the time, whatever they were,
      he didn’t want her taking the charge for it. He said he wanted
      to take the charge, said it was his and to charge him with it so
      she didn’t have to go to jail.”

      {¶22} On cross-examination, Sgt. Dillard clarified that when he

approached the vehicle and saw Marshall arching her back, she was raised,

with her head behind the head rest, almost in the back seat. He considered

her to be making a “furtive movement.” Sgt. Dillard remembered Marshall

wore jeans and a shirt. Because Appellant and Marshall were in separate

vehicles, Sgt. Dillard testified he had no way of knowing if Appellant saw

Marshall remove the drugs from her body during her search. However,

when Sgt. Dillard took the baggie to Appellant and questioned him,

Appellant denied having knowledge.

      {¶23} Sgt. Dillard acknowledged on cross-examination that Marshall

owned the vehicle. He testified there was marijuana in her purse. He also

acknowledged he found no contraband on Appellant. Sgt. Dillard testified

Appellant was not immediately cooperative, and his demeanor seemed to

change when they arrived at the jail.

      {¶24} With the conclusion of Sgt. Dillard’s testimony, the State

rested. Appellant did not present evidence and made a Crim.R. 29 motion

which was denied. During closing argument, Appellant emphasized:
Pickaway App. No. 15CA4                                                      12

      (1) Marshall owned the vehicle;

      (2) The crack cocaine was hidden inside Marshall;

      (3) The marijuana was inside Marshall’s purse and bra;

      (4) The digital scales were found in the glove box; and,

      (5) The Cigarillo cigars were found next to Marshall in the
      passenger seat.

In closing, counsel argued that the only evidence linking Appellant to the

cocaine hidden inside his “fiancé” was his statement, allegedly made at the

jail, that he would take responsibility for the charge.

      {¶25} The trial court proceeded to give the jury Standard Ohio Jury

Instructions, which included instructions on the burden of proof, direct and

circumstantial evidence, inferences from facts, and credibility. The trial

court defined “knowingly” and “possession.” “Possession” was defined as

follows:

      “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.”

The jury returned a verdict of guilty. Having reviewed the record, we do

not find this to be the exceptional case where the evidence weighs heavily

against conviction.

      {¶26} In this case, Appellant’s conviction is based on direct and
Pickaway App. No. 15CA4                                                      13

circumstantial evidence. Here, direct evidence links Marshall to the crack

cocaine. The direct evidence is that the other drugs and drug instruments

were within Marshall’s reach. Further, the crack cocaine was located inside

Marshall’s vagina, not a purse or baggie resting in plain view. Appellant

argues there is no way he could have had constructive possession of the

cocaine even if he had known of its existence.

      {¶27} However, having examined the record, weighed the evidence,

and considered the credibility of the witnesses, we find a rational basis exists

to support the jury’s finding of guilty. To begin, although Appellant did not

own the vehicle, the fact he was driving it provides some indication of

dominion and control. See Criswell, supra, at ¶ 25. See Brown, 4th Dist.

Athens No. 09CA3, 2009-Ohio-5390, at ¶ 21 (as the driver, the defendant's

“possession of the keys provided a strong indication of control over the

drugs found in the automobile”); State v. Chaffins, 4th Dist. Scioto No.

13CA3559, 2014-Ohio-1969, ¶ 33 (a fact finder may conclude that a

defendant who exercises dominion and control over an automobile also

exercises dominion and control over illegal drugs found in it). Here it can be

inferred that Appellant’s driving the vehicle provides some indication of

dominion and control over any occupants or contents brought into the

vehicle.
Pickaway App. No. 15CA4                                                     14

      {¶28} Second, the evidence demonstrates Appellant and Marshall

were involved in some sort of romantic relationship. Sgt. Dillard’s

testimony indicated Marshall was Appellant’s girlfriend. Defense counsel

referenced Marshall as Appellant’s fiancé. It has been held, when there was

additional other evidence, despite a defendant’s lack of presence on the

premises when authorities discovered an active methamphetamine lab, that

given parties’ romantic relationship, a jury could reasonably infer that both

parties engaged in the manufacture of methamphetamine. See Wickersham,

supra at ¶ 36; See State v. Jackson, 9th Dist. Summit Nos. 22378 and

22394, 2005-Ohio-5184 (determining that cohabitating man and woman held

to each have constructive possession of cocaine found in plain view in closet

of only bedroom, where both male and female clothes were located); State v.

Smith, 3rd Dist. Paulding No. 11-95-7 (Nov. 17, 1995) (observing that large

quantity of narcotics found throughout house, including defendant's

bedroom, constituted circumstantial evidence of defendant's knowledge of

and control over those narcotics). Although we cannot say the crack cocaine

in Marshall’s vagina was in plain view, from the fact that Marshall and

Appellant had some sort of romantic relationship, the jury could infer

Appellant had some knowledge of the crack cocaine.
Pickaway App. No. 15CA4                                                       15

      {¶29} Furthermore, the parties’ romantic relationship, coupled with

Sgt. Dillard’s uncontroverted testimony that Marshall made a “furtive

movement,” apparently arching her back to insert the crack cocaine baggie

in her vagina, provides a strong inference that Appellant had knowledge of

the crack cocaine. We cannot know whether Appellant asked Marshall to

hide the crack cocaine when he realized they were being pulled over by Sgt.

Dillard. However, if Marshall somehow brought crack cocaine to the

vehicle without Appellant’s knowledge, Appellant certainly would have

been made aware of the crack cocaine after Marshall made so exaggerated a

movement as to lower her jeans, arch her back so extremely that her head

was sticking into the back seat, and insert a baggie holding 2.73 grams of a

white substance into her vagina. Yet, when interacting with Sgt. Dillard at

the scene, Appellant made no attempt to inform Sgt. Dillard of an illegal act

he suddenly observed and did not wished to be associated with.

      {¶30} The jury was tasked with considering all the evidence. While

the facts that (1) Appellant was driving the vehicle; (2) Marshall and he had

a romantic relationship of some sort; and (3) Marshall’s furtive movements

were made in his presence are circumstantial evidence, the jury also had

direct evidence in the form of the testimony provided by Sgt. Dillard, that

Appellant told him that the crack cocaine “was his, and he wanted to take
Pickaway App. No. 15CA4                                                        16

charge of it.” While Appellant did not testify, which was his constitutional

right, or present other contradictory evidence, defense counsel in closing

attempted to cast doubt on the truthfulness of this evidence by referencing it

as “the statement that he supposedly made in jail.” And counsel attempted

to downplay the alleged statement as some chivalry on the part of Appellant,

in attempting to keep his fiancé from going to jail or being charged. We

note first that the statements of counsel are not evidence and the jury was

instructed as such. Removing counsel’s attempt to plant reasonable doubt

through his closing statement, the jury was left to consider only the

evidence provided by Sgt. Dillard. Simply put, the jury had Sgt. Dillard’s

uncontroverted testimony: “He said he wanted to take the charge, said it was

his and to charge him with it so she didn’t have to go to jail.” Appellant’s

confession to Sgt. Dillard may be construed as direct evidence of his guilt.

See State v. Watts, 1st Dist. Hamilton No. C-810091,1981 WL 10176, fn.1

(Dec. 23, 1981).

      {¶31} “ ‘While the jury may take note of inconsistencies and resolve

or discount them accordingly, * * * such inconsistences do not render

defendant's conviction against the manifest weight or sufficiency of the

evidence.’ ” State v. Proby, 10th Dist. Franklin No.15AP-1067, 2015-Ohio-

3364, ¶ 42, quoting State v. Gullick, 10th Dist. Franklin No. 13AP-317,
Pickaway App. No. 15CA4                                                        17

2014-Ohio-1642, ¶ 10, quoting State v. Nivens, 10th Dist. Franklin No.

95APA09-1236 (May 28, 1996). “A jury, as the finder of fact and the sole

judge of the weight of the evidence and the credibility of the witnesses, may

believe or disbelieve all, part, or none of a witness's testimony.” Proby,

supra, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

A conviction is not against the manifest weight of the evidence because the

jury believed the state's version of events over the appellant's version. Id. at

¶ 11, citing State v. Houston, 10th Dist. Franklin No. 04AP-875, 2005-Ohio-

449, ¶ 38. A reviewing court must give great deference to the jury's

determination of witness credibility. Id., citing State v. Chandler, 10th Dist.

Franklin No. 05AP-415, 2006-Ohio-2070, ¶ 19.

      {¶32} For the foregoing reasons, we find a rational basis exists in the

record for the jury’s decision in this matter. The jury was in the best

position to weigh the evidence and resolve factual differences. We do not

find it lost its way and created a manifest miscarriage of justice. As such,

we find no merit to Appellant’s sole assignment of error which is hereby

overruled. We affirm the judgment of the trial court.

                                                  JUDGMENT AFFIRMED.
Pickaway App. No. 15CA4                                                         18

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,

                                 BY: ______________________________
                                     Matthew W. McFarland,
                                     Administrative Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
