[Cite as State v. Hackett, 2014-Ohio-2739.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                       :

                 Plaintiff-Appellee,                 :

v.                                                   :                  No. 14AP-48
                                                                   (C.P.C. No. 11CR-03-1392)
Victor Hackett,                                      :
                                                                   (REGULAR CALENDAR)
                 Defendant-Appellant.                :


                                              D E C I S I O N

                                       Rendered on June 24, 2014


                 Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
                 for appellee.

                 Todd W. Barstow, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

TYACK, J.

        {¶ 1} Defendant-appellant, Victor Hackett, is appealing from his conviction on a
single count of possession of drugs in violation of R.C. 2925.11 following a bench trial. He
assigns a single error for our consideration:
                 THE TRIAL COURT ERRED AND DEPRIVED APPELLANT
                 OF DUE PROCESS OF LAW AS GUARANTEED BY THE
                 FOURTEENTH AMENDMENT TO THE UNITED STATES
                 CONSTITUTION AND ARTICLE ONE SECTION TEN OF
                 THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF
                 POSSESSION OF DRUGS AS THAT VERDICT WAS NOT
                 SUPPORTED BY SUFFICIENT EVIDENCE AND WAS ALSO
                 AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

        {¶ 2} R.C. 2925.11(A) defines possession of drugs as follows:
No. 14AP-48                                                                               2


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

       {¶ 3} Columbus Division of Police officers were summoned to a bar on the south
side of Columbus upon a report of a fight in progress. Upon arrival, they were told that
Hackett and the bar manager had an altercation. The officers reviewed surveillance video
and decided that Hackett should be charged with assault.
       {¶ 4} During the arrest process, the officers found a packet of white powder in
Hackett's pants pocket. Field testing indicated that the packet contained cocaine. The
officers then decided to add a charge of possession of drugs.
       {¶ 5} Hackett, who had been cooperative up to that time, became combative. This
led to his being physically subdued by the officers. Hackett then passed out. This, in turn,
led to his receiving medical attention before he was transported to jail.
       {¶ 6} "Possess" is defined in R.C. 2925.01(K) 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.

       {¶ 7} "Knowingly" is defined in R.C. 2901.22(B) as follows:

              (B) 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.

       {¶ 8} There is no serious debate that Hackett had a small packet of cocaine in his
pants pocket. For purposes of this case, the issues apparently are whether or not Hackett
was aware that he had a small packet of white powder in his pants pocket and that the
packet contained cocaine. Under the definition of "knowingly" he had only to be aware
such circumstances probably existed.
       {¶ 9} Sufficiency of the evidence is the legal standard applied to determine
whether the case should have gone to the jury. State v. Thompkins, 78 Ohio St.3d 380,
386 (1997). In other words, sufficiency tests the adequacy of the evidence and asks
No. 14AP-48                                                                                   3


whether the evidence introduced at trial is legally sufficient as a matter of law to support a
verdict. Id. "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." State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307
(1979). The verdict will not be disturbed unless the appellate court finds that reasonable
minds could not reach the conclusion reached by the trier of fact. Jenks at 273. If the
court determines that the evidence is insufficient as a matter of law, a judgment of
acquittal must be entered for the defendant. See Thompkins at 387.
       {¶ 10} Even though supported by sufficient evidence, a conviction may still be
reversed as being against the manifest weight of the evidence. Thompkins at 387. In so
doing, the court of appeals, sits as a " 'thirteenth juror' " and, after " '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 a new trial ordered.' " Id. (quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist.1983)); see also Columbus v. Henry, 105 Ohio App.3d 545, 547-48 (10th
Dist.1995). Reversing a conviction as being against the manifest weight of the evidence
should be reserved for only the most " 'exceptional case in which the evidence weighs
heavily against the conviction.' " Thompkins at 387.
       {¶ 11} As this court has previously stated, "[w]hile the jury may take note of the
inconsistencies and resolve or discount them accordingly, see [State v.] DeHass [10 Ohio
St.2d 230 (1967)], such inconsistencies do not render defendant's conviction against the
manifest weight or sufficiency of the evidence." State v. Nivens, 10th Dist. No. 95APA09-
1236 (May 28, 1996). It was within the province of the jury to make the credibility
decisions in this case. See State v. Lakes 120 Ohio App. 213, 217 (4th Dist.1964), ("It is
the province of the jury to determine where the truth probably lies from conflicting
statements, not only of different witnesses but by the same witness.")
       {¶ 12} See State v. Harris, 73 Ohio App.3d 57, 63 (10th Dist.1991), (even though
there was reason to doubt the credibility of the prosecution's chief witness, he was not so
unbelievable as to render verdict against the manifest weight).
No. 14AP-48                                                                             4


      {¶ 13} Given the standard we are to apply at this stage of the proceedings, we
cannot and do not disagree with findings of guilty entered by the trial court judge. It
seems most unlikely that Hackett did not know he had the packet in his pants pocket and
seems unlikely Hackett did not know the packet he had control over contained cocaine.
      {¶ 14} The sole assignment of error is overruled. The judgment of the Franklin
County Court of Common Pleas is affirmed.
                                                                    Judgment affirmed.

                        SADLER, P.J., and O'GRADY, J., concur.
