[Cite as State v. Martinez-Castro, 2019-Ohio-1155.]


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

STATE OF OHIO                                              C.A. No.   18CA011361

        Appellee

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
RUBEN MARTINEZ-CASTRO                                      COURT OF COMMON PLEAS
                                                           COUNTY OF LORAIN, OHIO
        Appellant                                          CASE No.   15CR090936

                                 DECISION AND JOURNAL ENTRY

Dated: March 29, 2019



        CALLAHAN, Judge.

        {¶1}     Appellant, Ruben Martinez-Castro, appeals his convictions by the Lorain County

Court of Common Pleas. This Court affirms.

                                                      I.

        {¶2}     On December 9, 2014, a Lorain police officer initiated a traffic stop of a vehicle

driven by Mr. Martinez-Castro. After the officer noted the odor of burnt marijuana in the vehicle

and determined that Mr. Martinez-Castro was driving with a suspended license, he placed Mr.

Martinez-Castro in his cruiser. A second officer deployed his K-9 around the vehicle. The K-9

alerted to the presence of narcotics, and the officers conducted a search of the vehicle’s interior,

during which they discovered one plastic baggie that contained a white, powdery substance in

plain sight on the console. They also found other baggies and a pill bottle that contained plant

matter concealed in a plastic grocery bag tied to the undercarriage of the driver’s seat. One
                                                2


baggie contained filler that is not a controlled substance. Several others contained powder

cocaine mixed with filler.

       {¶3}     Mr. Martinez-Castro was charged with trafficking in drugs in violation of R.C.

2925.03(A)(2) and possession of drugs in violation of R.C. 2925.11(A), each with a specification

alleging him to be a major drug offender. He was also charged with operating a motor vehicle

without a valid license in violation of R.C. 4510.12(A)(1) and possession of drug paraphernalia

in violation of R.C. 2925.14(C)(1). The trial court continued the case until the Ohio Supreme

Court resolved a certified conflict regarding whether the weight of cocaine must be measured by

excluding the weight of filler materials.

       {¶4}    Following a bench trial, the trial court found Mr. Martinez-Castro guilty of all of

the charges alleged in the indictment, but not guilty of the major drug offender specifications.

The trial court continued sentencing so that a presentence investigation could be completed, but

Mr. Martinez-Castro failed to appear. Nine months later, after Mr. Martinez-Castro was located

by his bonding company, he appeared for sentencing. The trial court merged his convictions for

trafficking in drugs and possession of drugs and sentenced him to eight years in prison. The trial

court also sentenced him to jail terms of six months and thirty days, respectively, for his

misdemeanor convictions, both to run concurrently with his prison term, and fined him $10,000.

Mr. Martinez-Castro filed this appeal.

                                               II.

                               ASSIGNMENT OF ERROR NO. 1

       MARTINEZ-CASTRO’S CONSTITUTIONAL RIGHTS WERE VIOLATED
       BY [THE] TRIAL COURT’S FAILURE TO FIND WEIGHT OF ACTUAL
       COCAINE[.]
                                               3


       {¶5}   In his first assignment of error, Mr. Martinez-Castro urges this Court to disregard

the Ohio Supreme Court’s decision in State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777,

and conclude that the trial court erred by finding him guilty of possession of and trafficking in

cocaine in an amount equal to or greater than one hundred grams when the State did not

introduce evidence of the weight of actual cocaine, exclusive of filler, that was found in his

possession.

       {¶6}   Mr. Martinez-Castro was convicted of violating R.C. 2925.03(A) and R.C.

2925.11(A), both of which provide that a violation is a first-degree felony subject to a

corresponding mandatory prison term if the amount of cocaine involved in the offense is equal to

or exceeds one hundred grams. R.C. 2925.03(C)(4)(g); R.C. 2925.11(C)(4)(f).1 In Gonzales, the

Ohio Supreme Court rejected the position now held by Mr. Martinez-Castro and held that “the

entire ‘compound, mixture, preparation, or substance,’ including any fillers that are part of the

usable drug, must be considered for the purpose of determining the appropriate penalty for

cocaine possession under R.C. 2925.11(C)(4).” Gonzales at ¶ 3. This Court has recognized that

the holding in Gonzales applies to the penalty enhancement set forth in R.C. 2925.03(C)(4) as

well. See State v. Darr, 9th Dist. Medina No. 17CA0006-M, 2018-Ohio-2548, ¶ 39.

       {¶7}    This Court cannot, as Mr. Martinez-Castro suggests, disregard precedent from the

Ohio Supreme Court.       Id., citing Simon v. Zipperstein, 32 Ohio St.3d 74, 77 (1987).

Consequently, consistent with Gonzales, this Court concludes that the trial court did not err by

finding him guilty of possession of and trafficking in cocaine in an amount equal to or greater

than one hundred grams. Mr. Martinez-Castro’s first assignment of error is overruled.


       1
         Both R.C. 2925.03 and R.C. 2925.11 have been amended on several occasions since the
date of the crimes at issue in this case. The portions relevant to this appeal, however, have not
changed.
                                                  4


                               ASSIGNMENT OF ERROR NO. 2

       MARTINEZ-CASTRO’S CONVICTION WAS AGAINST THE WEIGHT AND
       SUFFICIENCY OF THE EVIDENCE[.]

       {¶8}    Mr. Martinez-Castro’s second assignment of error contains two arguments: first,

that his convictions for possession of cocaine and trafficking in cocaine were based on

insufficient evidence because the State failed to prove that he possessed the cocaine; and second,

that his convictions are against the manifest weight of the evidence because the surrounding

circumstances demonstrate that he did not possess the cocaine.

       {¶9}     “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009–Ohio–

6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is

whether the prosecution has met its burden of production by presenting sufficient evidence to

sustain a conviction. Thompkins at 390 (Cook, J., concurring). In reviewing the evidence, we do

not evaluate credibility, and we make all reasonable inferences in favor of the State. State v.

Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to

reasonably conclude that the essential elements of the crime were proven beyond a reasonable

doubt. Id.

       {¶10} R.C. 2925.11(A), which prohibits drug possession, provides that “[n]o person

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

R.C. 2925.03(A)(2), which prohibits trafficking, 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.” The act of possession may be implied in trafficking in
                                                  5


drugs under R.C. 2925.03(A)(2). See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, ¶

24, overruling recognized by State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995 (observing that

“common sense and logic tell us that in order to prepare a controlled substance for shipping, ship

it, transport it, deliver it, prepare it for distribution, or distribute it, one must necessarily also

possess it.”).

        {¶11} “Possession” is defined as “having control over a thing or substance.” R.C.

2925.01(K).2 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.”

Id. Nonetheless, possession may be either actual or constructive. State v. Hilton, 9th Dist.

Summit No. 21624, 2004-Ohio-1418, ¶ 16, citing State v. McShan, 77 Ohio App.3d 781, 783

(8th Dist.1991).    “‘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. Jackson, 9th Dist. Summit No. 28691, 2018-Ohio-1285, ¶ 38,

quoting State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus. Presence in the vicinity of an

item, standing alone, does not establish constructive possession, but other factors taken

together—such as proximity to the item in plain view or knowledge of its presence—may be

circumstantial evidence. State v. Owens, 9th Dist. Summit No. 23267, 2007-Ohio-49, ¶ 23.

        {¶12}    In this case, Officer Jeremy Gray, who initiated the traffic stop of Mr. Martinez-

Castro’s vehicle, testified that he and another officer searched the vehicle driven by Mr.

Martinez-Castro. They found one “clear, plastic baggie of a white, powdery substance * * *

right there on the center console.” Officer Gray affirmed that this baggie was in a readily



        2
        R.C. 2925.01 has also been amended several times since the crimes at issue in this case
were committed. The substance of R.C. 2925.01(K), however, has not changed.
                                                 6


observable location in the vehicle. He also testified that they found several other baggies

underneath the driver’s seat inside a plastic grocery bag. Officer Gray noted that the grocery bag

was tied to the seat frame using the bag’s handles, and he observed that tying the bag in that

manner would take no more effort than “tying a lace on a shoe.” From this evidence, a finder of

fact could reasonably conclude beyond a reasonable doubt that Mr. Martinez-Castro, who sat in

the driver’s seat next to the center console and immediately above where most of the cocaine was

concealed, knowingly exercised dominion and control over it so as to demonstrate constructive

possession.

       {¶13} Mr. Martinez-Castro also argues that his convictions are against the manifest

weight of the evidence. Specifically, he has maintained that although the cocaine was found in

the vehicle that he was driving, the circumstances demonstrate that the drugs did not belong to

him and that he was unaware of their presence.

       {¶14} When an appellant argues that a conviction is against the manifest weight of the

evidence, this Court applies a different standard than we apply in reviewing the sufficiency of the

evidence. See generally Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11-13. In

that situation, this 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). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction. Id., citing

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
                                                 7


       {¶15}    In support of this argument, Mr. Martinez-Castro points to the facts that he did

not own the vehicle in question and that the drugs were in a plastic bag that had been tied to the

frame of the driver’s seat. The fact that Mr. Martinez-Castro did not own the vehicle, however,

is not dispositive. At the time of the traffic stop, he was the driver and sole occupant of the

vehicle and as such, he exercised authority over it. A finder of fact could conclude that “a

defendant who exercises dominion and control over an automobile also exercises dominion and

control over illegal drugs found in the automobile.” State v. Rampey, 5th Dist. Stark No. 2004

CA 00102, 2006-Ohio-1383, ¶ 37, citing State v. Smith, 162 Ohio App.3d 208, 2005-Ohio-3579,

¶ 23-28 (8th Dist.) and State v. Trembly, 137 Ohio App.3d 134, 141 (8th Dist.2000). With

respect to the location of the drugs found under the driver’s seat, Mr. Martinez-Castro misstates

Officer Gray’s testimony: he did not testify, as Mr. Martinez-Castro maintains, that “one could

not tie the bag while sitting in the driver’s seat[,]” but that one could not do so while sitting up

straight in the driver’s seat. The fact that Officer Gray found a clear baggie of cocaine sitting on

the center console of the vehicle in plain sight also undermines Mr. Martinez-Castro’s argument

that he was unaware that there were drugs stowed in the vehicle.

       {¶16} The evidence in this case does not weigh heavily against the conclusion that Mr.

Martinez-Castro possessed the cocaine at issue. Accordingly, this is not the exceptional case in

which this Court must conclude that the convictions are against the manifest weight of the

evidence.

       {¶17} Mr. Martinez-Castro’s second assignment of error is overruled.

                                                III.

       {¶18} Mr. Martinez-Castro’s assignments of error are overruled. The judgment of the

Lorain County Court of Common Pleas is affirmed.
                                                 8


                                                                              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 Lorain, 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.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



TEODOSIO, P. J.
SCHAFER, J.
CONCUR.

APPEARANCES:

BRIAN J. DARLING, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.
