[Cite as State v. Holloman, 2011-Ohio-4236.]


           Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95896



                                       STATE OF OHIO

                                                 PLAINTIFF-APPELLEE

                                                 vs.

                                 VINCENT HOLLOMAN

                                                 DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-529098

        BEFORE:            Sweeney, J., Stewart, P.J., and Celebrezze, J.
                                     2
      RELEASED AND JOURNALIZED: August 25, 2011


ATTORNEYS FOR APPELLANT

Robert L. Tobik, Esq.
Cuyahoga County Public Defender
By: Nathaniel McDonald, Esq.
Asst. Public Defender
301 Lakeside Avenue, Suite 400
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: John Wojton, Esq.
         Nicole Ellis, Esq.
Assistant County Prosecutors
The Justice Center, 9 Floor
                    ht




1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:

      {¶ 1} Defendant-appellant, Vincent Holloman (“defendant”), appeals

his drug possession conviction.   Defendant asserts his conviction was not

supported by sufficient evidence, was against the manifest weight of the

evidence, that the trial court applied the wrong definition of possession, and
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that his Sixth Amendment right to confront witnesses was violated because

the state did not reveal the identity of the confidential informant. Defendant

also challenges the court’s imposition of costs. For the reasons that follow,

we affirm.

      {¶ 2} Defendant waived his right to a jury trial.   At the bench trial, the

following evidence was introduced:

      {¶ 3} On September 16, 2009, the Cleveland Police Department Vice

Unit was conducting undercover drug operations in the area of East 116th and

Buckeye.     Det. Hall testified that he was working undercover along with

several other officers that day. He and Det. Roddy met with a confidential

informant who was searched prior to entering the undercover vehicle. Det.

Hall drove the informant to the area of E. 116th and Buckeye and gave the

informant marked money. The informant exited the car and was told to wait

to be contacted to make a street level drug buy.

      {¶ 4} The informant got out of the car around 9:00 p.m.         Det. Hall

observed the informant talking with defendant, who was a passenger in a car

that was parked outside of a liquor store. Another man exited the liquor

store and started talking to the informant. That man, who was later

identified as co-defendant Kavin Taylor, got in the driver’s seat of the vehicle

and the informant got in the rear of the car. The vehicle proceeded east on
                                       4
Buckeye and turned left on E. 117th. The informant then exited the car and

returned to Det. Hall’s undercover vehicle. The informant was out of Det.

Hall’s sight for a brief period between exiting defendant’s car and re-entering

Det. Hall’s car.

      {¶ 5} Upon returning to Det. Hall, the informant was searched again

and had some crack cocaine.        Other officers stopped the suspect vehicle.

Det. Hall did not observe any transactions that occurred inside the suspect

vehicle.

      {¶ 6} Although defendant’s counsel attempted to elicit the identity of

the informant, the court sustained the state’s objection.

      {¶ 7} Det. McKay testified that he participated in the take down of

Taylor’s vehicle. He assisted in handcuffing defendant and searching the car

where he “observed a bag of crack cocaine sitting on the seat underneath

[defendant].” He indicated the bag was under defendant’s left thigh as he

was being removed from the vehicle. According to McKay, Taylor put the car

in reverse and hit a vehicle behind him.          Det. McKay said that Taylor

attempted to climb over defendant to exit the car but the officers pulled him

out of the driver’s side of the vehicle before he could do so.

      {¶ 8} Lieutenant Holmes also participated in the take down of Taylor’s

vehicle. To him, it looked like the occupants were trying to jump out of the
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car. Taylor put the car in reverse and hit his car. Lt. Holmes ran to the

passenger side and was pulling defendant out of the car when he noticed a

bag of cocaine on the car seat. The drugs were underneath defendant. Lt.

Holmes said he focused on the passenger side of the vehicle and never saw

Taylor trying to climb over defendant.

      {¶ 9} Detective Raspberry testified that his vehicle was positioned in

front of Taylor’s vehicle during the take down. Det. Raspberry’s view was on

the passenger side of Taylor’s vehicle. He saw Taylor jumping around and

saw a lot of shuffling. Taylor reversed his car and hit the car behind him.

Det. Raspberry pulled Taylor out of the car as Taylor was trying to jump over

defendant.   Taylor’s upper body made it towards defendant’s lap on the

passenger side before he was pulled from the car.       Defendant was also

jumping around in the car. Det. Raspberry found the buy money in Taylor’s

pocket.

      {¶ 10} Kavin Taylor testified on behalf of the defense.   According to

him, he encountered defendant at the liquor store and was giving him a ride

home. He did not remember if defendant was sitting in the car alone without

him. Taylor said both the gun found in the console and the drugs found

underneath defendant’s leg belonged to him. Taylor said he found the gun

and he did not know how the drugs got underneath defendant’s leg. Taylor
                                      6
adamantly denied ever trying to climb over defendant during the take down.

Yet, he speculated that the drugs may have fallen off his lap and onto

defendant as he was reaching to shut the door. Taylor denied ever selling

drugs on any other occasion and claimed that the $1,700 found in his pocket

was money he had saved from the $600 per month social security income he

had been receiving for his condition of “AD/HD.”

      {¶ 11} Taylor said he had a gun despite his prior felony conviction

because he had been shot in the leg five times. He denied that the shooting

had anything to do with drug activity. Taylor also denied putting his car in

reverse but said he was trying to throw it in park. According to Taylor, he

was “snatched out the car and punched and stomped * * *.” When the state

asked him to identify state’s Exhibit 6, which was the bag of drugs found

underneath defendant, Taylor said, “I don’t know what that is.” When the

prosecutor asked, “[t]his is what you are claiming that you had,” Taylor

promptly responded, “It’s it then.”

      {¶ 12} Taylor claimed he had purchased the drugs that night.        But,

Taylor was unable to identify where he had purchased it, offering only, “I just

be walking up to any off-brand people.” He also did not know how much it

had cost and instead estimated “[l]ike $100 probably.”      When asked if he

intended to smoke the entire contents of Exhibit 6 himself, Taylor said he had
                                     7
intended to smoke it all that night by himself.     Exhibit 6 contained 3.23

grams of crack cocaine.

      {¶ 13} The trial court acquitted defendant on all counts with the

exception of count one, drug possession. The court specifically found that

defendant possessed the drugs and noted that Taylor had adamantly denied

making any attempt to climb over defendant during the take down.

Defendant raises five assignments of error for our review:

      {¶ 14} “Assignment of Error I: Mr. Holloman’s conviction is not

supported by legally sufficient evidence as required by State and Federal due

process.”

      {¶ 15} 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. State v.

Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

      {¶ 16} Defendant asserts that the evidence is insufficient to establish

the element of possession necessary to sustain his conviction.
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      {¶ 17} “‘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.” R.C. 2925.01(K)

      {¶ 18} In this case, the drugs were found underneath defendant’s leg.

Although police believe they saw Taylor attempting to lunge over defendant,

Taylor adamantly denied it. While Taylor did speculate that it may have

dropped onto defendant’s lap, it was not on defendant’s lap, it was under his

leg. Construing the evidence in a light most favorable to the state, as we

must, the evidence supports defendant’s conviction for drug possession.

      {¶ 19} Defendant relies on this court’s decision in State v. Bush,

Cuyahoga App. No. 81959, 2003-Ohio-4054, in urging reversal. In Bush, this

court observed:

      {¶ 20} “Constructive possession is proved by showing that the defendant

was able to exercise dominion and control over the contraband. State v.

Trembly (2000), 137 Ohio App.3d 134, 141, 738 N.E.2d 93. ‘Circumstantial

evidence that the defendant was located in very close proximity to readily

usable drugs may constitute constructive possession.’ Id.”

      {¶ 21} The facts at issue in Bush are very different than the instant

matter.   In Bush, the police smelled PCP and observed a passenger in a
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vehicle holding an amber vial, which he placed under the seat. Bush was not

the passenger but the driver of the vehicle. A cigarette was found outside of

the vehicle. This court held the evidence was insufficient to support a drug

possession conviction against Bush because there was no evidence that he

had access to or possession of the PCP. Bush, 2003-Ohio-4045, ¶12. In this

case, defendant was not only in the vicinity of the drugs, they were

underneath his leg. Further, while Taylor claimed ownership of the drugs,

he did not initially recognize them in court, he could not recall where he

purchased them or what he had allegedly paid for them.

      {¶ 22} This case is also distinguishable from State v. Murphy, Cuyahoga

App. No. 93093, 2010-Ohio-1422, upon which defendant also relies.           In

Murphy, the undisputed facts were that the driver attempted to pass the

drugs to Murphy who tried to pass them back, but ultimately the drugs

landed on the floor.    Immediately, Murphy informed the police that the

driver had tried to put the drugs on him. The issue before this court was

whether “Murphy’s momentary involuntary possession when the drugs were

forced on him by the driver was sufficient possession to constitute a violation

of R.C. 2925.11(A).” (Emphasis in original.)      Id. at ¶9.   Here, there is

conflicting testimony as to whether Taylor attempted to climb over defendant

or not. Taylor speculated that the drugs could have fallen off his lap, but he
                                      10
denied any attempt to climb over defendant. Ultimately, the drugs were not

found on the floor or defendant’s lap. No one saw the drugs being passed

back and forth or transferred at all. They were found underneath defendant’s

leg on the passenger seat where he was sitting. It was reasonable for the

trier of fact to find that defendant knowingly possessed the drugs found under

his person and that his control over the drugs was voluntary.

      {¶ 23} This assignment of error is overruled.

      {¶ 24} “Assignment of Error II: The trial court erred when it failed to

apply the proper definition of possession to the facts.”

      {¶ 25} “Assignment of Error III: The Defendant’s conviction is against

the manifest weight of the evidence.”

      {¶ 26} To warrant reversal of a verdict under a manifest weight of the

evidence claim, 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 evidence, the jury clearly lost its

way and created such a manifest miscarriage of justice that the judgment

must be reversed and a new trial ordered. Thompkins, supra.

      {¶ 27} First,   defendant   takes   exception   with   the   trial   court’s

observations that the drugs were found under his leg on the car seat, that “a

person would be aware of that,” that defendant had access to the drugs, and
                                          11
that he could have obtained, possessed, or otherwise controlled that crack

cocaine. From this defendant infers that the trial court misapplied the law

with regard to the element of possession and found him guilty of drug

possession based solely upon his mere access to the drugs. We do not agree.

      {¶ 28} In   this   bench   trial,   the    court   observed   that   the   facts

“circumstantially support[ed] allegations of drug trafficking” on defendant’s

part, however, he was acquitted of those charges because the court found the

evidence did not establish it beyond a reasonable doubt. Likewise, the court

acquitted defendant of the weapons charges because the vehicle did not

belong to defendant, and there was no evidence that defendant was aware of

the weapon found in the armrest of the vehicle even though the court found

that defendant “had access to it.” The court observed that the “law requires

more than having access.         The law requires some mental process and

awareness.” From these statements of the law, it is clear that the trial court

was well versed on the law of possession and properly applied it in rendering

its verdicts.

      {¶ 29} While the trial court found defendant not guilty of the weapons

charges based on mere access to the gun, it found defendant was guilty of

possessing the drugs found under his leg. The court explicitly noted that

“the State’s evidence” offered defendant “his best hope of avoiding that charge
                                     12
or conviction on that charge (for drug possession) and that is that Mr. Taylor

tried to escape from the vehicle by climbing over Mr. Holloman and exiting

through the passenger door. Of course, Mr. Taylor adamantly denied that,

although more than one police officer described it, but the Court is not willing

to suggest or accept the suggestion perhaps made by defense counsel that

those drugs could have in that fashion ended up on the passenger seat.”

From these statements on the record, it is clear that the trial court rejected

the defense theory that defendant involuntarily possessed the drugs or that

they somehow fell under his leg. The trial court found that defendant had

knowing and voluntary control over the drugs that were found under his leg.

      {¶ 30} Having thoroughly reviewed the record, defendant’s conviction for

drug possession is supported by the evidence, and the trial court did not

clearly lose its way in finding defendant guilty of possessing the drugs found

underneath his leg.

      {¶ 31} These assignments of error are overruled.

      {¶ 32} “Assignment of Error IV: Mr. Holloman’s conviction violates his

Sixth Amendment Right to confront witnesses and to present his defense

because the State did not reveal the identity of the confidential informant.”

      {¶ 33} In this case and during cross-examination, defense counsel asked

an officer to identify the informant. The court sustained the state’s objection
                                      13
to this inquiry, and the informant’s identity was not revealed. We review

this error by applying the abuse of discretion standard. State v. McKoy,

Cuyahoga App. No. 93363, 2010-Ohio-522, ¶10, citing, State v. Bays, 87 Ohio

St.3d 15, 1999-Ohio-216, 716 N.E.2d 1126.

      {¶ 34} It is well settled that the government enjoys the privilege to

withhold the identity of informants that aid in the enforcement of the law.

Roviaro v. United States (1957), 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639.

This privilege, however, is subject to certain limitations. In Rovario, the court

held that “[w]here the disclosure of an informer’s identity, or of the contents

of his communication, is relevant and helpful to the defense of an accused, or

is essential to a fair determination of a cause, the privilege must give way.”

Id. at 60-61.

      {¶ 35} The United States Supreme Court declined to adopt a fixed rule

with respect to disclosure. Id. at 62. Instead, the court preferred to balance

“the public interest in protecting the flow of information against the

individual’s right to prepare his defense. Whether a proper balance renders

nondisclosure erroneous must depend on the particular circumstances of each

case, taking into consideration the crime charged, the possible defenses, the

possible significance of the informer’s testimony, and other relevant factors.”

In Roviaro, the court further reasoned that “[t]he desirability of calling [the
                                     14
informant] as a witness, or at least interviewing him in preparation for trial,

was a matter for the accused rather than for the government to decide.”

(Emphasis added.) Id. at 64.

      {¶ 36} In accordance with Roviaro, the Ohio Supreme Court has held

that “[t]he identity of an informant must be revealed to a criminal defendant

when the testimony of the informant is vital to establishing an element of the

crime or would be helpful or beneficial to the accused in preparing or making

a defense to a criminal charge.” State v. Williams (1983), 4 Ohio St.3d 74, 446

N.E.2d 779, paragraph one of the syllabus. In Williams, the court focused on

the degree of the informant’s participation in determining whether the

competing interests outlined in Roviaro favored disclosure. Id. at 76, 446

N.E.2d 779.

      {¶ 37} Defendant asserts that the trial court abused its discretion by

depriving him of the opportunity to cross-examine the informant. Defendant

maintains the State used the informant to convict him of drug possession and

that knowing the identity of the informant would have helped him prepare

his defense.

      {¶ 38} Defendant points to officer Hall’s testimony that he observed the

informant talking to defendant prior to the drug buy. However, the trial

court did not rely on this testimony and in fact acquitted defendant of the
                                      15
drug trafficking charge notwithstanding this testimony.          Arguably, the

state’s failure to provide the informant’s testimony aided defendant’s ability

to defend the charges against him.           Defendant also suggests that the

informant’s identity was important to his defense because the informant was

the only source for the information that a drug deal had occurred. Again,

defendant was acquitted of drug trafficking and his conviction for drug

possession was not based on any information relevant to the informant’s

identity.    For these reasons, we find the facts at issue in State v. Pope,

Cuyahoga App. No. 81321, 2003-Ohio-3647, are distinguishable.

         {¶ 39} Defendant’s argument that the identity of the informant would

have helped him prepare for trial is not persuasive. Defendant did not seek

the disclosure of the informant’s identity until questioning witnesses at trial,

therefore, the utility of the information towards aiding his trial preparation,

if any, was irrelevant. The record in this case does not support defendant’s

contention that the informant was essentially a state’s witness as to the drug

possession charge for which defendant was convicted. This assignment of

error is overruled.

         {¶ 40} “Assignment of Error V: The trial court erred in imposing court

costs based on its mistaken belief that court costs were mandatory in this

case.”
                                      16
      {¶ 41} R.C. 2947.23 requires the imposition of court costs as a part of the

criminal sentence, even if the defendant is indigent. Only other statutory

authority may allow the suspension of costs. However, the trial judge has

discretion to waive costs assessed against an indigent defendant. Cleveland v.

Tighe, Cuyahoga App. Nos. 81767 and 81795, 2003-Ohio-1845. An indigent

defendant must move the trial court to waive payment of costs at the time of

sentencing. If the defendant makes such a motion, then he preserves the

issue for appeal, and the appellate court will review the issue on an

abuse-of-discretion standard. State v. Hughley, Cuyahoga App. No. 90323,

2009-Ohio-3274, ¶12.

      {¶ 42} The trial court properly imposed costs in accordance with the law.

 Although defense counsel requested that they be waived due to defendant’s

alleged inability to pay, the trial court did not abuse its discretion in denying

this request. This assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the

Common Pleas Court to carry this judgment into execution. The defendant’s
                                     17
conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




JAMES J. SWEENEY, JUDGE

MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
