[Cite as State v. Levell, 2017-Ohio-9055.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 27489
                                                   :
 v.                                                :   Trial Court Case No. 16-CR-369/2
                                                   :
 EBON LEVELL                                       :   (Criminal Appeal from
                                                   :    Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 15th day of December, 2017.

                                              ...........

MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 West Monument Avenue, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                             .............
                                                                                         -2-


HALL, P.J.

        {¶ 1} Ebon Levell appeals from his convictions for receiving stolen property.

Finding no error, we affirm.

                                      I. Background

        {¶ 2} In April 2014, a car with an expired vehicle registration drove past

Montgomery County Deputy Sheriff Matthew Wright while he was on patrol, so he initiated

a traffic stop. The vehicle was driven by Levell. Deputy Wright explained to him the reason

for the stop and asked Levell for his driver’s license and proof of insurance. Levell

admitted that he did not have a license. Because without a license Levell could not legally

drive the car, Deputy Wright had Levell sit in the back of his police cruiser while he

conducted an inventory search of the car in preparation for towing. In the car, Wright

found boxes of prescription medication with labels indicating that they were prescribed to

patients at Wood Glen Alzheimer’s Community in Dayton. When Wright asked Levell

about the medication, Levell told him that his wife, Tyreca Rippley, worked as a nurse at

Wood Glen. Deputy Wright, believing that the medication was stolen from Wood Glen,

then contacted his supervisor and requested assistance.

        {¶ 3} Deputy Wright wrote Levell citations for the traffic offenses and spoke to him

about the medication.1 Levell blamed his wife for stealing them from Wood Glen. He

admitted that he knew she was stealing items from work and said that he had told her to

stop. And Levell admitted that he had noticed the stolen items piling up in her car over

time.



1Levell filed a motion to suppress his statements to law enforcement officers. After a
hearing, the trial court overruled the motion to suppress.
                                                                                         -3-


       {¶ 4} Deputy Tony Ball arrived to photograph the car and collect and package its

contents. He found three boxes of blister pack Seroquel: an unopened box containing

thirty 200 milligram tablets, an open box containing twelve 100 milligram tablets, and an

open box containing twenty-three Seroquel 50 milligram tablets and three 100 milligram

tablets. Each of the boxes of Seroquel had a label indicating that it was prescribed to H.K.

at Wood Glen Alzheimer’s Community. Deputy Ball also found a box containing twenty-

one 1000 milligram tablets of Valtrex. The label on the box indicated that it was prescribed

to N.D. at Wood Glen Alzheimer’s Community. Deputy Ball packaged all of the boxes as

evidence, turned them over to another officer for storage in the property room, and

generated a lab submission sheet requesting that an analysis of the medication be done

by the Miami Valley Regional Crime Lab.

       {¶ 5} Matthew Fox, a former employee of the Miami Valley Regional Crime Lab

and an expert in drug chemistry and toxicology, analyzed the medication. He physically

identified the tablets in the three boxes of Seroquel as containing quetiapine, a drug that

may be dispensed only with a prescription. Quetiapine is marketed under the brand name

Seroquel. Fox also physically identified the tablets in the box of Valtrex as containing

valacyclovir, another drug that may be dispensed only with a prescription. Valacyclovir is

marketed under the brand name Valtrex.

       {¶ 6} According to Angie Copley, the Director of Nursing at Wood Glen Alzheimer’s

Community, Wood Glen cares for patients with Alzheimer’s and dementia. She said that

although there is not a pharmacy on site, Wood Glen keeps patients’ medications on site.

Copley said that Wood Glen carefully monitors the medications and has a strict set of

procedures in place that nurses must follow in administering medications. If a medication
                                                                                       -4-


is not used, such as when a patient passes away, a nurse must count, package, and

place the medication in a bin in the medication room. All Wood Glen nurses, said Copley,

are trained on these procedures. She further testified that Tyreca Rippley, Levell’s wife,

was employed at Wood Glen from April 2010 to April 25, 2014, when she was terminated.

Copley said that H.K. was a resident at Wood Glen in March and April 2014 and was

prescribed Seroquel. And she said that N.D. was a patient during that same time and was

prescribed Valtrex.

      {¶ 7} The Montgomery County Prosecutor’s Office reviewed the case in 2014

shortly after Levell’s arrest and decided not to seek charges. The same year, the

medication was destroyed. After the prosecutor’s review, the Department of Health

opened its own investigation. In 2016, after the health department had completed its

investigation, it passed on additional information to the prosecutor. Based on this new

information, the prosecutor decided to seek charges.

      {¶ 8} In April 2016, Levell was indicted on two counts of receiving stolen property

(dangerous drugs) in violation of R.C. 2913.51(A), each a fourth-degree felony. Levell

waived his right to a jury trial, and the case proceeded to bench trial in December 2016.

Before trial began, Levell’s trial counsel orally moved for an independent analysis of the

medication found in the car involved in the case and orally moved to dismiss the case

because the medication had been destroyed. The trial court denied the motion for

independent testing because the medication had been destroyed and could not be tested.

The court also denied the motion to dismiss but held the matter open to conduct additional

research. After the trial, counsel renewed the motion to dismiss based on the destruction

of the medication. The court overruled the motion, finding that the medications were only
                                                                                         -5-


potentially useful evidence and that they were not destroyed in bad faith. The trial court

then found Levell guilty on both counts and sentenced him to community control for up to

three years.

       {¶ 9} Levell appealed.

                                         II. Analysis

       {¶ 10} Levell presents two assignments of error for our review. The first challenges

the manifest weight of the evidence supporting his convictions. The second presents a

claim for ineffective assistance of trial counsel.

                            A. Manifest weight of the evidence

       {¶ 11} The first assignment of error alleges that Levell’s convictions for receiving

stolen property are against the manifest weight of the evidence.

       {¶ 12} “[A] manifest-weight challenge ‘concerns “the inclination of the greater

amount of credible evidence * * * to support one side of the issue rather than the other.” ’

” (Emphasis sic.) State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d

180, ¶ 75, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting Black’s Law Dictionary 1594 (6th Ed.1990). “A manifest-weight challenge requires

us to consider the entire record, including the credibility of the witnesses, the weight of

the evidence, and any reasonable inferences and determine whether ‘ “the [panel] clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.” ’ ” Id., quoting Thompkins at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 13} The receiving-stolen-property statute states: “No person shall receive,

retain, or dispose of property of another knowing or having reasonable cause to believe
                                                                                           -6-


that the property has been obtained through commission of a theft offense.” R.C.

2913.51(A). Accordingly, the state had to prove that Levell received, retained, or disposed

of property that was not his and that he knew or had cause to believe that the property

had been stolen.

       {¶ 14} Levell first argues that the state failed to prove that the medication belonged

to Wood Glen Alzheimer’s Community, as alleged in the indictment. He concedes that the

medication was taken from Wood Glen but says that the evidence does not show whether

Wood Glen owned the medication or the patient owned it. Levell argues that the actual

owner is significant because it determines the level of the offense. We disagree. By

default, receiving stolen property is a first-degree misdemeanor. R.C. 2913.51(C). But it

is a fourth-degree felony “if the property involved is a dangerous drug, as defined in

section 4729.01 of the Revised Code.” The definition of “dangerous drug” includes a drug

that “may be dispensed only upon a prescription.” R.C. 4729.01(F)(1)(b). Matthew Fox,

the expert who analyzed the Seroquel and Valtrex found in Levell’s car, testified that both

are prescription medications.

       {¶ 15} The state did not have to prove who the actual owner of the medication was

because in a theft offense, “[i]t is the ‘actor’s,’ i.e., the defendant’s, relationship to the

property which is controlling. The important question is not whether the person from whom

the property was stolen was the actual owner, but rather whether the defendant had any

lawful right to possession.” State v. Rhodes, 2 Ohio St.3d 74, 76, 442 N.E.2d 1299 (1982).

Similarly, the important question here is whether Levell “had any lawful right to

possession,” Dayton v. Crane, 2d Dist. Montgomery No. 16608, 1998 WL 22054, *3 (Jan.

23, 1998). There is no dispute that the medication was stolen and no evidence that Levell
                                                                                           -7-


had any right to the medication. Moreover, for purposes of theft offenses, “Owner”

includes “any person * * * who has possession or control of” the property taken. R.C.

2913.01 (D). Levell fails to convince us that the nursing home was not included in the

definition of “owner,” or that it matters in this case who the actual owner of the stolen

property was.

       {¶ 16} Levell next argues that the state failed to prove that he received, retained,

or disposed of the medication. “To be convicted upon a charge of receiving stolen

property, it is necessary for the State to show that a defendant exercised possession of

the stolen property.” State v. Jarman, 2d Dist. Clark No. 1235, 1980 WL 352412, *3

(March 6, 1980). “Retain” means “ ‘to hold or continue to hold in possession or use:

continue to have, use, recognize, or accept.’ ” State v. Dilldine, 2d Dist. Greene No. 09-

CA-61, 2010-Ohio-3648, ¶ 13, quoting In re Bromfield, 1st Dist. Hamilton No. C-030446,

2004-Ohio-450, ¶ 14, quoting Webster’s Third New International Dictionary 1938 (1993).

       {¶ 17} “Actual possession is not required to be shown. Possession may be

constructive. Constructive possession exists when an individual exercises dominion and

control over an object, even though that object may not be within the immediate physical

possession of that person.” Jarman at *3, citing State v. Wolery, 46 Ohio St.2d 316, 348

N.E.2d 351 (1976). But “the mere fact that property is located within premises under one’s

control does not, of itself, constitute constructive possession.” State v. Hankerson, 70

Ohio St.2d 87, 91, 434 N.E.2d 1362 (1982). “[A] person is not guilty of an offense unless

* * * [t]he person’s liability is based on conduct that includes either a voluntary act, or an

omission to perform an act or duty that the person is capable of performing.” R.C.

2901.21(A)(1). “Possession is a voluntary act if the possessor knowingly procured or
                                                                                        -8-


received the thing possessed, or was aware of the possessor’s control of the thing

possessed for a sufficient time to have ended possession.” R.C. 2901.21(F)(1). So

constructive possession requires that the person was conscious of the presence of the

object. Hankerson at 91.

      {¶ 18} Levell argues that the evidence does not show that he possessed the

medication found in the car. He says that there is no evidence that he had actual physical

possession of it. Levell also says that the evidence does not show that he had constructive

possession, that he lacked control over the medication and did not know that the particular

medication found was in the car. He points out that Deputy Wright admitted that the

medication was not visible—some was in the trunk and the medication on the backseat

was in plastic grocery bags. Levell also notes that he admitted only that at some time he

saw medication in the car. He did not say when this was or what medication he saw.

      {¶ 19} “ ‘[T]he decision as to which of several competing inferences, suggested by

the evidence in the record, should be preferred, is a matter in which an appellate judge is

at least equally qualified, by reason and experience, to venture an opinion.’ ” State v.

Flores-Lopez, 2017-Ohio-690, 85 N.E.3d 534, ¶ 51 (2d Dist.), quoting State v. Lawson,

2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). Accordingly, “we

defer more to decisions on what testimony should be credited, than we do to decisions

on the logical force to be assigned to inferences suggested by evidence, no matter how

persuasive the evidence may be.” State v. Brooks, 2d Dist. Montgomery No. 21531, 2007-

Ohio-1029, ¶ 28, citing Lawson at *4.

      {¶ 20} We held in State v. Ruby, 149 Ohio App.3d 541, 2002-Ohio-5381, 778

N.E.2d 101 (2d Dist.), that the conviction for possession of drugs and drug paraphernalia
                                                                                          -9-


found in the vehicle of the defendant’s wife, which the defendant was driving, was not

against the manifest weight of the evidence. We concluded that the evidence was

sufficient to prove that the defendant constructively possessed the drugs. The evidence

showed that the defendant frequently had loaned the vehicle to other people, including

known drug dealers, and that his wife had removed drug paraphernalia from the vehicle.

The evidence also showed that earlier in the day on which the defendant was stopped by

the police, he had loaned the vehicle to a known drug dealer, who happened to be in the

car with the defendant. The contraband was found from the floor of the rear passenger

compartment, behind the driver’s seat. We rejected the defendant’s argument that he did

not know the contraband was in the vehicle.

       {¶ 21} The Sixth Circuit Court of Appeals applying Ohio law in Criss v. Kent, 867

F.2d 259 (6th Cir.1988), concluded that a police officer had probable cause to arrest an

accused for receiving stolen property where the apartment in which the accused resided

had a city street sign on a wall in the living room that the accused claimed had been

brought home by his roommate. “Ohio law is clear,” said the court, “that a suspect can be

in ‘constructive possession’ of stolen property without having actual physical possession

of the property if it is located within premises under the suspect’s control and he was

conscious of its presence.” Criss at 263, citing Hankerson, 70 Ohio St.2d at 91, 434

N.E.2d 162.

       {¶ 22} Here, the evidence supports finding that Levell had constructive possession

of the medication in the car. In Levell’s admissions to Deputy Wright, it is not always clear

when Levell is talking about what he knew and had seen in the past and what he knew

and had seen the night he was stopped. But Levell’s admissions do seem to suggest that
                                                                                         -10-


when he was stopped, he knew that there was stolen medication in the car. And he

admitted that he knew his wife had been stealing from Wood Glen and that he had seen

medication in the car and knew that his wife had taken it from Wood Glen. He was able

to exercise dominion or control over the medication, and he knew that the medication was

in the car. So Levell was aware that he controlled the medication “for a sufficient time to

have ended possession.”

       {¶ 23} We cannot say that the evidence weighs heavily against the convictions,

that the trial court lost its way, or that a manifest miscarriage of justice resulted.

       {¶ 24} The first assignment of error is overruled.

                            B. Ineffective assistance of counsel

       {¶ 25} The second assignment of error alleges that Levell was denied the effective

assistance of counsel.

       {¶ 26} To show that his trial counsel was ineffective, Levell is “required to prove

that his counsel’s performance fell below an objective standard of reasonable

representation and that the deficiency prejudiced him.” State v. Mohamed, Ohio Sup. Ct.

Slip Opinion No. 2017-Ohio-7468, ¶ 17, citing State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989), paragraph two of the syllabus, citing Strickland v. Washington, 466

U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶ 27} Levell argues that he was denied the effective assistance of counsel

because trial counsel failed to file a motion to suppress the medication, which was

destroyed two years before Levell was indicted. He says that he did not have the

opportunity to request an independent analysis of it. Levell acknowledges that counsel

orally moved to dismiss the case based on the destruction of the medication but maintains
                                                                                          -11-


that counsel also should have filed a motion to suppress on this basis. Levell contends

that he was prejudiced because he was unable to determine the reason for the

medication’s destruction and therefore whether there was any bad faith.

       {¶ 28} Not filing a motion to suppress does not amount to ineffective assistance of

counsel when “there was no reasonable probability of success.” State v. Nields, 93 Ohio

St.3d 6, 34, 752 N.E.2d 859 (2001). Here, filing a motion to suppress would not have met

with success. Counsel orally moved to dismiss the case because the medication was not

available for testing. The question was whether the destruction of the medication violated

Levell’s right to due process because the evidence was materially exculpatory or because

the evidence was potentially useful and destroyed in bad faith. See State v. McClain,

2016-Ohio-838, 60 N.E.3d 783, ¶ 21 (2d Dist.) (“The Due Process Clause of the

Fourteenth Amendment to the United States Constitution protects a criminal defendant

from being convicted when the State either fails to preserve materially exculpatory

evidence or destroys, in bad faith, potentially useful evidence.”). The trial court found that

the medication was only potentially useful evidence and that it was not destroyed in bad

faith. A motion to suppress would have presented the same question. It is reasonable to

expect that the trial court’s answer would be the same. So filing a motion to suppress on

the same basis would have been futile.

       {¶ 29} “If the evidence in question is not materially exculpatory, but only potentially

useful, the defendant must show bad faith on the part of the state in order to demonstrate

a due process violation.” State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878

N.E.2d 1, ¶ 10. In this record, there is no evidence that the destroyed evidence is

materially exculpatory nor is there evidence that it was destroyed in bad faith. Because
                                                                                           -12-


the result would be no different had trial counsel filed an additional motion to suppress,

we conclude that Levell fails to prove his claim that his trial counsel was ineffective.

       {¶ 30} The second assignment of error is overruled.

                                      III. Conclusion

       {¶ 31} We have overruled both of the assignments of error presented. The trial

court’s judgment is affirmed.

                                      .............



DONOVAN, J. and FROELICH, J., concur.


Copies mailed to:

Mathias H. Heck
Alice B. Peters
Sean Brinkman
Hon. Mary L. Wiseman
