[Cite as State v. Gist, 2014-Ohio-3274.]




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


State of Ohio                                   Court of Appeals No. L-12-1355

        Appellee                                Trial Court No. CR0201201678

v.

Lamontie E. Gist                                DECISION AND JUDGMENT

        Appellant                               Decided: July 25, 2014

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Jennifer Liptack-Wilson, Assistant Prosecuting Attorney,
        for appellee.

        James J. Popil, for appellant.

                                           *****

        PIETRYKOWSKI, J.

        {¶ 1} Lamontie E. Gist appeals a December 6, 2012 judgment of the Lucas

County Court of Common Pleas convicting him of possession of cocaine, a violation of

R.C. 2925.11(A) and (C)(4)(a), a fifth degree felony, and having weapons while under
disability, a violation of R.C. 2923.13(A)(3) and third degree felony. The convictions are

based on guilty verdicts returned by a jury at trial in October 2012. The jury also

returned a not guilty verdict on a charge of trafficking in cocaine in violation of R.C.

2925.03(A)(2) and (C)(4)(a), a fifth degree felony.

       {¶ 2} In November 2011, the Vice Narcotics Unit of the Toledo Police

Department conducted an investigation of reported sales of crack cocaine or cocaine out

of apartment No. 204, 2115 Collingwood Boulevard in Toledo, Ohio. Using a

confidential informant, the Vice Narcotics Unit secured a controlled buy of crack cocaine

at the residence on November 28, 2011 and, afterwards, secured a no-knock search

warrant to search the premises.

       {¶ 3} Members of the Toledo Police Vice Narcotics Unit and a Toledo Police

SWAT (Special Weapons and Tactics) team together conducted the search on

November 29, 2011. The SWAT team entered the apartment first and secured the area.

Members of the Vice Narcotics Unit followed and conducted the search. Appellant was

present in the apartment at the time of the search.

       {¶ 4} Officer Paul Marchyok of the Toledo Police Department testified at trial

that he was the first SWAT team member through the door. Officer Marchyok testified

that he saw appellant rising from a chair in the living room and then going to the floor.

Detective Shawn Mohler of the Vice Narcotics Unit testified that he found what appeared

to be crack cocaine in a plastic bag located on the floor near the front left leg of the chair




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where appellant had been. A lab report, admitted in evidence at trial, disclosed that the

bag contained an off-white rock material consisting of 3.17 grams of cocaine.

       {¶ 5} Detective Eric Sweat was the lead detective on the narcotics investigation.

Detective Sweat testified that he found a loaded .45 caliber gun on a TV stand on a table

in the living room near appellant. A lab report from the Toledo Police Regional Crime

Laboratory was admitted into evidence at trial. The report identified the weapon as a

Para-Ordnance Model P13-45 caliber pistol. The report also stated that the pistol was test

fired and determined to be operable.

       {¶ 6} Three individuals were found in the apartment at the time of the search:

appellant, Jackie Green, and Darrell Bell. Appellant was in the living room. Green was

in the kitchen. Bell was in a bedroom. Appellant does not dispute that he was sitting in a

recliner chair in the living room when the search was conducted or that a bag containing

3.17 grams of cocaine was found by police near the recliner during the search.

       {¶ 7} Sergeant Miller of the Vice Narcotics Unit testified that he searched

appellant and discovered cash on him of $370. He testified that the typical sale amount

for crack cocaine is $20. According to Sergeant Miller, the cash was significant, not for

the amount of cash, but for the denominations of the bills. The cash included six $20

bills, nine $10s, and 11 $5s.

       {¶ 8} Appellant asserts two assignments of error on appeal:

              1. The convictions against appellant Lamontie E. Gist were against

       the manifest weight of the evidence.




3.
              2. The convictions against appellant Lamontie E. Gist were not

       supported by the sufficiency of the evidence.

       {¶ 9} In challenging his convictions, appellant relies on the testimony of Jackie

Green. Green testified that appellant had been at the apartment only 3-4 minutes when

police arrived and that the drugs found by police did not belong to appellant. According

to Green, Darrell Bell purchased the drugs and Bell shared them with him. Green also

testified that Bell placed the gun on the top shelf of the TV stand earlier that afternoon.

       {¶ 10} Jackie Green testified that he and appellant have been friends for years.

Evidence at trial included evidence of prior felony convictions of Green. To establish an

element of the having weapons while under disability charge against appellant, the state

submitted into evidence at trial a 2001 judgment of conviction of appellant on two felony

offenses: (1) attempted possession of marijuana, a violation of R.C. 2923.02(A) and

2925.11(A)(C)(3)(d) and a fourth degree felony, and (2) carrying a concealed weapon, a

violation of R.C. 2923.12 and a fourth degree felony.

       {¶ 11} We consider appellant’s challenge to his convictions on sufficiency of the

evidence grounds first.

                               Sufficiency of the Evidence

       {¶ 12} Sufficiency of the evidence is “‘that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally

sufficient to support a jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary (6 Ed.1990)




4.
1433. In State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), the Ohio Supreme

Court outlined the analysis required to apply this standard:

              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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61

       L.Ed.2d 560, followed.) Id. at paragraph two of the syllabus.

Sufficiency of the evidence is purely a question of law. Thompkins at 386.

                                  Possession of Cocaine

       {¶ 13} Appellant challenges both convictions on sufficiency of the evidence

grounds. Appellant was convicted of possession of cocaine in violation of R.C

2925.11(A) and (C)(4)(a), a fifth degree felony. R.C. 2925.11(A) states: “No person

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

analog.” R.C. 2925.11(C)(4) applies where the possessed drug is cocaine.

       {¶ 14} Appellant contends that the evidence at trial was insufficient to prove the

“knowingly” and “possession” elements of R.C. 2925.11(A). Appellant argues that there

was no evidence offered at trial to suggest that the cocaine seized by police was his.




5.
       {¶ 15} Possession may be actual or constructive. State v. Wolery, 46 Ohio St.2d

316, 329, 348 N.E.2d 351 (1976). To establish constructive possession of the drugs, the

state must establish that the defendant was able to exercise dominion and control over

them. Id.; State v. Durr, 6th Dist. Sandusky No. S-97-056, 2000 WL 1033033, *4

(July 28, 2000). Evidence that a defendant was located in very close proximity to readily

usable drugs may constitute circumstantial evidence to support a finding of constructive

possession. State v. Rutledge, 6th Dist. Lucas No. L-12-1043, 2013-Ohio-1482, ¶ 11;

Durr at *4; State v. Morales, 5th Dist. Licking No. 2004 CA 68, 2005-Ohio-4714, ¶ 50.

       {¶ 16} “A person acts knowingly, regardless of his purpose, when he is aware that

his conduct will probably cause a certain result or will probably be of a certain nature. A

person has knowledge of circumstances when he is aware that such circumstances

probably exist.” R.C. 2901.22(B). Whether a person knowingly possessed a controlled

substance is to be “determined from all the attendant facts and circumstances.” State v.

Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998).

       {¶ 17} The testimony of Officer Marchyok and Detective Mohler together, if taken

as true, establish that when police stormed through the door of the apartment, appellant

was seen rising from a chair in the living room where crack cocaine was found. The

cocaine was found in a plastic baggie at the foot of the chair. At that time appellant was

alone in the living room.

       {¶ 18} Viewing the evidence most favorably to the prosecution, we conclude that a

rational trier of fact could have found that appellant knowingly constructively possessed




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the 3.17 gram bag of crack cocaine that was found in the living room. Accordingly, we

conclude there was sufficient evidence to support appellant’s conviction for possession of

cocaine in violation of R.C. 2925.11(A) and (C)(4)(a).

                        Having Weapons While Under Disability

       {¶ 19} Appellant contends that his conviction for having weapons while under

disability, a violation of R.C. 2923.13(A)(3) is also not supported by sufficient evidence.

Appellant argues that evidence was lacking demonstrating that he had knowledge of the

gun or that he possessed or had constructive possession of it.

       {¶ 20} R.C. 2923.13(A)(3) provides:

              2923.13 Having weapons while under disability

              (A) Unless relieved from disability as provided in section 2923.14 of

       the Revised Code, no person shall knowingly acquire, have, carry, or use

       any firearm or dangerous ordnance, if any of the following apply:

              ***

              (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.




7.
       {¶ 21} Appellant argues that the evidence at trial was insufficient to establish that

he knowingly possessed the .45 caliber handgun. Appellant contends there was no

evidence that he had knowledge of the gun or that he possessed or constructively

possessed the weapon.

       {¶ 22} Constructive possession can be sufficient to support a conviction of having

weapons under disability. State v. Munn, 6th Dist. Lucas No. L-08-1363, 2009-Ohio-

5879, ¶ 47-48; State v. Hardy, 60 Ohio App.2d 325, 327, 397 N.E.2d 773 (8th Dist.1978).

Viewing the evidence most favorably to the prosecution, we conclude that any rational

trier of fact could have found that appellant was aware of the presence of the weapon and

had immediate access to it. The weapon was near where appellant was sitting and where

the bag of cocaine was located. If appellant had played video games as contended by

Jackie Green, appellant would also have been looking at the television and the TV stand

where the gun had been placed. We conclude there was sufficient evidence to support

appellant’s conviction for having weapons while under disability, a violation of R.C.

2923.13(A)(3).

       {¶ 23} We find assignment of error No. 2 not well-taken.

                            Manifest Weight of the Evidence

       {¶ 24} Under assignment of error No. 1, appellant challenges both convictions,

asserting that the jury verdicts on which they are based are against the manifest weight of

the evidence.




8.
        {¶ 25} Where it is claimed that a verdict is against the manifest weight of the

evidence, an appellate court acts as a “thirteenth juror,” weighs the evidence, and may

disagree with a factfinder’s conclusions on conflicting testimony. Thompkins, 78 Ohio

St.3d. at 387, 678 N.E.2d 541; State v. Lee, 6th Dist. No. L-06-1384, 2008-Ohio-253,

¶ 12:

               The court, reviewing the entire record, weighs the evidence and all

        reasonable inferences, considers the credibility of witnesses and determines

        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 new trial ordered. Thompkins at 387, 678 N.E.2d 541,

        quoting with approval, State v. Martin, 20 Ohio App.3d 172, 175, 485

        N.E.2d 717 (1983).

        {¶ 26} Reversals on this ground are granted “only in the exceptional case in which

the evidence weighs heavily against conviction.” Id. “There is a presumption that the

findings of the trier-of-fact were indeed correct.” Seasons Coal Co., Inc. v. Cleveland, 10

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Fundamental to the analysis is that

“[j]udgments supported by some competent, credible evidence going to all the essential

elements of the case will not be reversed by a reviewing court as being against the

manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d

279, 376 N.E.2d 578 (1978), syllabus.




9.
       {¶ 27} With respect to the possession of cocaine conviction, appellant contends

that the verdict is against the manifest weight of the evidence because there was no

evidence that the cocaine belonged to him and because appellant had been in the

apartment only for a few minutes. However, the undisputed evidence places a 3.17 gram

bag of rock cocaine at the chair where appellant had been sitting when police arrived.

The drugs were in easy reach of appellant. It is not necessary for the state to prove

appellant owned the drugs to prove constructive possession. State v. Cortez, 6th Dist.

Lucas No. L-05-1112, 2007-Ohio-96, ¶ 25.

       {¶ 28} We defer to the factfinder in its determination of the credibility of Jackie

Green’s testimony that appellant neither owned or possessed the drugs. As the cocaine

was found at the foot of his chair, under the totality of the circumstances a rational trier of

fact could reasonably find that appellant had knowledge of the presence of the drugs and

constructive, if not actual, possession of them.

       {¶ 29} We find appellant’s contention that his conviction for possession of cocaine

is against the manifest weight of the evidence is without merit.

       {¶ 30} With respect to having a weapon under disability charge, appellant argues

that the testimony of Jackie Green demonstrated that he had no knowledge that a gun was

present in the apartment. Green testified that the gun belonged to Darrell Bell and that

Bell placed the weapon on the TV stand that afternoon. Further appellant contends that

the evidence demonstrated that the gun was outside his immediate reach.




10.
       {¶ 31} In our view, a factfinder could reasonably find that appellant was aware of

the presence of the gun and had immediate access to it. The evidence was clear that the

living room was small. Both Detective Sweat and Jackie Green testified that the handgun

was found on a shelf of the TV stand in the room. The television was near the recliner

chair where appellant had been sitting and where the drugs were found. Appellant would

be looking in the direction of the TV when playing video games.

       {¶ 32} There was evidence at trial that Bell was frail, unsteady on his feet, and

could barely walk. He was assisted in walking by police. Given his physical condition, a

trier of fact might find it implausible to believe that Bell placed the weapon in the living

room to use himself.

       {¶ 33} We find competent credible evidence in the record supports the jury verdict

finding appellant guilty of having a weapon while under a disability. We conclude that

appellant’s contention that the verdict is against the manifest weight of the evidence is

without merit.

       {¶ 34} We find assignment of error No. 1 not well-taken.

       {¶ 35} We affirm the judgment of the Lucas County Court of Common Pleas. We

order appellant to pay the costs of this appeal, pursuant to App.R. 24.


                                                                          Judgment affirmed.




11.
                                                                      State v. Gist
                                                                      C.A. No. L-12-1355




       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.
                                               _______________________________
Stephen A. Yarbrough, P.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.sconet.state.oh.us/rod/newpdf/?source=6.




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