[Cite as State v. Gervin, 2016-Ohio-5670.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 9-15-51

        v.

GREGORY GERVIN AKA                                        OPINION
ROBERT GERVIN,

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 15-CR-225

                                      Judgment Affirmed

                          Date of Decision:   September 6, 2016




APPEARANCES:

        Robert C. Nemo for Appellant

        Kevin P. Collins for Appellee
Case No. 9-15-51


SHAW, P.J.

       {¶1} Defendant-appellant, Gregory Gervin aka Robert L. Gervin (“Gervin”),

appeals the December 1, 2015 judgment entry of the Marion County Court of

Common Pleas journalizing his conviction by a jury for one count of possession of

cocaine and one count of possession of heroin and sentencing him to serve twelve

months in prison on each count to be served concurrently.

       {¶2} On June 4, 2015, the Marion County Grand Jury returned a two-count

indictment against Gervin alleging Count One, Possession of Cocaine, in violation

of R.C. 2925.11(A),(C)(4), a felony of the fifth degree, and Count Two, Possession

of Heroin, in violation of R.C. 2925.11(A),(C)(6), a felony of the fourth degree. The

charges stemmed from the execution of a search warrant at an apartment in Marion,

Ohio, where law enforcement encountered Gervin, ordered him to the ground, and

determined him to be in possession of a white plastic baggy containing smaller bags

of cocaine and heroin.

       {¶3} Upon arraignment, Gervin pled not guilty to the charges. Gervin

subsequently filed a motion to suppress arguing that the search warrant was (1) not

properly executed due to a failure of service on the lessee Sabreena Brown, (2) not

supported by probable cause, and (3) did not specify the property to be seized.

       {¶4} On August 13, 2015, the trial court held a hearing on Gervin’s motion

to suppress where the State presented the testimony of law enforcement officers


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involved in the execution of the search warrant and where the search warrant, the

affidavit supporting the search warrant, and the return on the search warrant were

admitted into evidence by stipulation.

       {¶5} On August 14, 2015, the trial court issued a judgment entry overruling

the motion to suppress on the grounds raised.

       {¶6} On October 22, 2015, the case proceeded to a jury trial. Before trial,

the prosecution moved to amend Count Two of the indictment to remove the

language referring to the amount of heroin as exceeding one gram. The amendment

would reduce the level of the offense alleged to a fifth degree felony. The trial court

granted the State’s motion and the indictment was so amended.

       {¶7} At trial, the prosecution presented the testimony of the law enforcement

officers involved in obtaining and executing the search warrant and in the discovery

of the drugs on or about Gervin’s person. The prosecution also presented the

testimony of the Marion Police Department property officer to establish the

complete chain of custody of the narcotics obtained during the execution of the

search warrant as well as the testimony of the forensic scientist at the Bureau of

Criminal Investigation, who tested the chemical make-up of the drugs and identified

the substances as cocaine and heroin. Several exhibits were also admitted into

evidence, including photographs taken by law enforcement at the scene which




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depicted the location where the drugs were found and Gervin’s location in the

apartment at the time of his arrest.

       {¶8} The defense rested after the presentation of the State’s case and moved

for acquittal on the basis of Crim.R. 29, which was overruled by the trial court.

After deliberation, the jury returned guilty verdicts on both counts.

       {¶9} On December 1, 2015, the trial court sentenced Gervin to twelve

months in prison on each count to be served concurrently for a total stated prison

term of twelve months.

       {¶10} Gervin subsequently filed this appeal, asserting the following

assignments of error for our review.

                        ASSIGNMENT OF ERROR NO. I

       APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT
       TO EFFECTIVE ASSISTANCE OF COUNSEL.

                       ASSIGNMENT OF ERROR NO. II

       THE JURY’S FINDING OF GUILTY ON BOTH COUNTS WAS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
       AND THE STATE PRESENTED INSUFFICIENT EVIDENCE
       TO PROVE THE ESSENTIAL ELEMENTS OF POSSESSION.

                              First Assignment of Error

       {¶11} In his first assignment of error, Gervin claims he received ineffective

assistance of counsel based upon his trial counsel’s alleged failure to raise certain

arguments pertaining to the search warrant and its execution in a motion to suppress.


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Specifically, Gervin claims his trial counsel was ineffective for (1) failing to argue

that the search warrant was not dated, (2) failing to argue that the judge issuing the

search warrant did not have authority to do so, and (3) failing to seek suppression

of the drugs on the grounds that upon executing the search warrant there was no

consensual entry and/or a failure of law enforcement to comply with the “knock and

announce” rule upon entering the premises.

                                  Standard of Review

       {¶12} To establish his claims on appeal, Gervin must show that trial

counsel’s performance was deficient and that counsel’s deficient performance

prejudiced him. State v. Jackson, 107 Ohio St.3d 53, 2005–Ohio–5981, ¶ 133, citing

Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to make either

showing defeats a claim of ineffective assistance of counsel. State v. Bradley, 42

Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no reason for a

court deciding an ineffective assistance claim to approach the inquiry in the same

order or even to address both components of the inquiry if the defendant makes an

insufficient showing on one.”).

       {¶13} In order to show trial counsel’s performance was deficient, appellant

must prove that counsel’s performance fell below an objective standard of

reasonable representation. Jackson at ¶ 133. The appellant must overcome the

strong presumption that defense counsel’s conduct falls within a wide range of


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reasonable professional assistance. Strickland at 689. With respect to prejudice, a

challenger must demonstrate “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. It is not enough “to show that the errors had some conceivable

effect on the outcome of the proceeding.” Id. at 693. Counsel’s errors must be “so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.

at 687.

                             Alleged Search Warrant Defect

          {¶14} Gervin first argues that his trial counsel was ineffective for failing to

argue in a motion to suppress that the search warrant was not dated. Gervin claims

that this alleged defect invokes the exclusionary rule and compels suppression of

the drugs obtained by law enforcement. Gervin directs our attention to R.C.

2933.25. This statute provides an example to which warrants are expected to

substantially conform. Included in the example form is the signature of the issuing

judge and the date signed.

          {¶15} Here, the search warrant contains the signature of the issuing judge,

but does not indicate the date. However, the affidavit of Lieutenant Chris Adkins

supporting the search warrant contained both the signature of the issuing judge as

notary and the date signed. Notably, the affidavit supporting the search warrant


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indicates that the issuing judge notarized the affidavit on June 1, 2015 at 12:06 a.m.

At the suppression hearing, Lt. Adkins corroborated this timeline by testifying that

on June 1, 2015, he met the judge at the police department “in the middle of the

night” to obtain his signature on the search warrant and supporting affidavit. (Supp.

Hrg. Aug. 13, 2015 at 20). Lt. Adkins further testified that the search warrant was

executed at the apartment where Gervin was located at approximately 12:40 a.m. on

June 1, 2015, shortly after the issuing judge signed the affidavit and the search

warrant. (Id. at 24).

       {¶16} Gervin has not provided us with any authority to support his position

that the signed, undated search warrant in this case accompanied by a dated

affidavit, also bearing the issuing judge’s signature as notary, and supported by

testimony from the affiant officer establishing the date the search warrant was

signed somehow invalidates the search warrant and invokes the exclusionary rule.

To the contrary, “clerical errors, inadvertently made without prejudice to the

defendant, will not invalidate an otherwise valid search warrant.”) See State v.

Harrington, 10th Dist. Franklin No. 14AP-571, 2015-Ohio-2492, ¶ 10, quoting

State v. Honzu, 10th Dist. Franklin No. 94APA07-1011 (June 1, 1995); see also

State v. Batain, 8th Dist. Cuyahoga No. 91502, 2009-Ohio-2582, ¶¶ 26-27; State v.

Dunn, 3d Dist. Marion No. 9-89-27, *10 (November 20, 1991). Accordingly, we




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find no merit in Gervin’s argument that his trial counsel was ineffective for failing

to raise the issue of the undated search warrant during the trial court proceedings.

                                   Authority of the Issuing Judge

         {¶17} Gervin also claims that his trial counsel was ineffective for failing to

argue that the drugs obtained during the execution of the search warrant were subject

to suppression because the issuing judge did not have the authority to hear evidence

and issue search warrants in criminal matters. Gervin relies on State v. Brown, in

which the Supreme Court of Ohio held “that unless appointed by the chief justice

pursuant to Article IV, Section 5(A)(3) of the Ohio Constitution, a probate judge

does not have the authority to issue search warrants in criminal matters.1” 142 Ohio

St.3d 92, 2015-Ohio-486, ¶ 10. The record reveals the judge issuing the search

warrant in this case was not exclusively a probate judge, but rather was a judge of

the Marion County Court of Common Pleas, Family Division. Pursuant to R.C.

2301.03(Z) a judge holding this position “shall have the same qualifications,

exercise the same powers and jurisdiction, and receive the same compensation as

the other judges of the court of common pleas of Marion County and shall be elected


1
  In reaching this conclusion, the Supreme Court analyzed the relevant authority on the subject including
R.C. 2933.21, which states, “A judge of a court of record may, within his jurisdiction, issue warrants to search
a house or place * * *;” Crim.R. 41(A)(1) which states, “A search warrant authorized by this rule may be
issued by a judge of a court of record to search and seize property located within the court's territorial
jurisdiction;” and R.C. 2931.01 which provides, “As used in Chapters 2931 to 2953 of the Revised Code: *
* * (B) ‘Judge’ does not include the probate judge [and] (C) ‘Court’ does not include the probate court.” The
Supreme Court in Brown further recognized an exception to the statute in cases where the chief justice,
pursuant to Article IV, Section 5(A)(3) of the Ohio Constitution, assigns a probate judge to temporarily sit
or hold court on any other division of a court of common pleas. State v. Cotton, 56 Ohio St.2d 8, 12–13
(1978).

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Case No. 9-15-51


and designated as judge of the court of common pleas, domestic relations-juvenile-

probate division.” (Emphasis added). This authority necessarily includes the power

and jurisdiction to hear evidence and issue search warrants in criminal matters.

       {¶18} Even assuming, arguendo, that the issuing judge in this case did not

have the authority to issue the search warrant, Gervin overlooks the fact that the

Supreme Court in Brown also held that the good-faith exception to the exclusionary

rule set forth in State v. Leon applies in these cases. Brown at ¶¶ 11-12, citing State

v. Leon, 468 U.S. 897 (determining that the exclusionary rule should not be applied

to bar evidence obtained by officers acting in reasonable good-faith reliance on a

search warrant issued by a detached and neutral magistrate that is ultimately found

to be unlawful). Based on the foregoing, we do not find that Gervin established his

trial counsel was ineffective for failing to raise an argument relating to the judge’s

authority to issue a search warrant in this case.

                     Nonconsensual Entry and/or Violation of
                           Knock and Announce Rule

       {¶19} In his final argument under this assignment of error, Gervin contends

that his trial counsel was ineffective in failing to elicit testimony from law

enforcement officers to determine whether they complied with R.C. 2935.12—

Ohio’s knock-and-announce rule—when executing the search warrant. Section

2935.12(A) of the Revised Code provides:



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       [W]hen executing a search warrant, the peace officer, law
       enforcement officer, or other authorized individual * * *
       executing the warrant * * * may break down an outer or inner
       door or window of a dwelling house or other building, if, after
       notice of his intention to * * * execute the warrant or summons,
       he is refused admittance * * *.

“Exceptions exist, but the rule directs police officers executing a search warrant at

a residence to first knock on the door, announce their purpose, and identify

themselves before they forcibly enter the home.” State v. Oliver, 112 Ohio St.3d

447, 2007-Ohio-372, ¶ 9, citing Wilson v. Arkansas, 514 U.S. 927, 935-36 (1995).

       {¶20} At the outset we note that the affidavit outlines a significant pattern

and context of violence leading to probable cause for this search and a concern for

stopping the destruction and/or removal of evidence—both of which have

constituted exceptions to the “knock and announce” rule. State v. Gilbert, 4th Dist.

No. 06CA3055, 2007-Ohio-2717, ¶ 24, quoting Wilson, supra, at 936 (noting that

“the knock and announce requirement has certain recognized exceptions that

include the existence of exigent circumstances, which may include an officer’s fear

for his physical safety or an officer’s reasonable belief that “evidence would likely

be destroyed if advance notice were given’ ”); see also, R.C. 2935.12; R.C.

2933.231(C) (Ohio’s knock and announce statute provides for judicial waiver of the

knock and announce requirement if officer safety is a concern, or if such an exigency

arises at the time of execution of the warrant, the officers may dispense with the

knock and announce procedures.).

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       {¶21} In the case sub judice, very little evidence was presented at trial as to

the manner and mode of entry in the execution of the search warrant. In fact, the

only evidence presented on this issue was the testimony of Deputy Colin Lowe who

testified to the following at trial:

       Deputy Lowe: We merged the SRT team (Marion Police
       Department Special Response Team) and the (sheriff’s office)
       counterassault team together. We decided to use a ballistic shield
       for the stairway. We approached the residence, and that’s when
       we knocked at the door yelling, you know, sheriff’s office, search
       warrant, and that’s when entry was made.

       Prosecutor: And how did you make entry?

       Deputy Lowe: Using a ram, battering ram.

       Prosecutor: And then what do you do?

       Deputy Lowe: Went upstairs. We used—like I said, we used a
       ballistic shield to go up the stairs. There was one guy with the
       shield, the way we did it, up inside the stairway, you know. That
       way we at least have some cover, and basically made entry up the
       stairway.

(Trial Oct. 22, 2016 at 139).

       {¶22} On appeal, Gervin maintains his trial counsel was ineffective for

failing to elicit testimony regarding whether law enforcement was “refused

admittance.” See R.C. 2935.12. Gervin’s argument seems to be that, had his trial

counsel pursued this argument in the motion to suppress, his trial counsel would

have learned that the police violated Gervin’s Fourth Amendment rights by failing

to follow the knock-and-announce rule. It is not clear from the record that a motion

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to suppress based on this aspect of improper execution of the search warrant would

have had a reasonable probability of success. Although the trial transcript permits

an inference that the law enforcement teams entered the residence after knocking

and announcing their presence, but without being refused admittance, there is no

definitive evidence that this is what occurred.

        {¶23} In this case, “this Court has no way of knowing what testimony might

[have been] elicited” on this issue at a suppression hearing. State v. Mitchell, 9th

Dist. No. 24730, 2009-Ohio-6950, at ¶ 20. The record developed at trial is generally

inadequate to determine the validity of a suppression argument on appeal. State v.

Siders, 4th Dist. Gallia No. 07CA10, 2008-Ohio-2712, at ¶ 11 (quoting State v.

Culbertson, 5th Dist. Stark No. 2000CA00129, *4 (Nov. 13, 2000)). “[If] the record

is not clear or lacks sufficient evidence to determine whether [there is a reasonable

probability that] a suppression motion would have been successful, a claim for

ineffective assistance of counsel cannot be established.” State v. Parkinson, 5th Dist.

Stark No. 1995CA00208, *3 (May 20, 1996). Thus, the record lacks sufficient

evidence to permit this Court to determine the validity of Gervin’s suppression

argument and therefore he has not shown that his trial counsel’s performance was

deficient or that the result would have been different if his trial counsel would have

pursued this particular argument in the suppression motion before trial.2


2
 In Hudson v. Michigan, 547 U.S. 586 (2006), the United States Supreme Court concluded that even if the
police violate the knock-and-announce rule before executing a search warrant, the Fourth Amendment does

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         {¶24} For all of the foregoing reasons, no reasonable probability exists that

the motion to suppress based upon the arguments asserted by Gervin on appeal

would have been successful. In light of this determination, trial counsel’s decision

not to file a motion to suppress on these specific grounds did not constitute

ineffective assistance of counsel, and the first assignment of error is overruled.

                                    Second Assignment of Error

         {¶25} In his second assignment of error, Gervin argues that his convictions

for possession of cocaine and for possession of heroin are not supported by

sufficient evidence and are against the manifest weight of the evidence.

Specifically, Gervin claims that the prosecution failed to prove beyond a reasonable

doubt that he knowingly possessed the cocaine and heroin found during the

execution of the search warrant.




not necessarily require the suppression of all evidence found in the ensuing search. Furthermore, several
appellate districts, following Hudson, have concluded that the exclusionary rule does not apply to violations
of the knock-and-announce rule. See e.g., State v. Macke III, 12th Dist. Clinton No. CA2007-08-033, 2008-
Ohio-1888, ¶ 29-31; State v. Lam, 2d Dist. Montgomery No. 21787, 2007-Ohio-5664, ¶ 8; State v. Gilbert,
4th Dist. Scioto No. 06CA3055, 2007-Ohio-2717, ¶ 39; State v. Marcum, 7th Dist. Columbiana No. 04 CO
66, 2006-Ohio-7068, ¶ 15. The issue was presented to the Supreme Court of Ohio in State v. Oliver, but not
decided. Instead, the court remanded the case to the trial court for reconsideration in light of Hudson. State
v. Oliver, 112 Ohio St.3d 447, 2007-Ohio-372, ¶ 13. Notably, the Supreme Court of Ohio has recently
accepted jurisdiction to review the proposition, “The exclusionary rule is the appropriate remedy under
Article I, Section 14 of the Ohio Constitution for a violation of R.C. 2935.12.” State v. Bembry, 7th Dist.
Mahoning Nos. 2014 MA 51, 2014 MA 52; 2015-Ohio-5598, appeal allowed by State v. Bembry, 145 Ohio
St. 3d 1470, 2016-Ohio-3028.


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                                 Standard of Review

       {¶26} Whether there is legally sufficient evidence to sustain a verdict is a

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is

a test of adequacy. Id. When an appellate court reviews a record upon a sufficiency

challenge, “ ‘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.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus.

       {¶27} In reviewing whether the trial court’s judgment was against the weight

of the evidence, the appellate court sits as a “thirteenth juror” and examines the

conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In doing

so, this Court must review the entire record, weigh the evidence and all of the

reasonable inferences, consider the credibility of witnesses, and determine whether

in resolving conflicts in the evidence, the factfinder “clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.” Thompkins at 387.

       {¶28} In this case, Gervin was convicted of possession of cocaine in

violation of R.C. 2925.11(A),(C)(4), which states

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

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Case No. 9-15-51



       ***

       (C) Whoever violates division (A) of this section is guilty of one
       of the following:

       ***

       (4) If the drug involved in the violation is cocaine or a
       compound, mixture, preparation, or substance containing
       cocaine, whoever violates division (A) of this section is guilty of
       possession of cocaine.

Gervin was also convicted of possession of heroin in violation of R.C.

2925.11(A),(C)(6), which states

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

       ***

       (C) Whoever violates division (A) of this section is guilty of one
       of the following:

       ***

       (6) If the drug involved in the violation is heroin or a compound,
       mixture, preparation, or substance containing heroin, whoever
       violates division (A) of this section is guilty of possession of heroin.

       {¶29} It is undisputed that the substances recovered from the apartment were

identified as cocaine and heroin. The only remaining question focused on whether

the elements of possession were established at trial. A person acts knowingly “when

the person is aware that the person’s conduct will probably cause a certain result or



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will probably be of a certain nature. A person has knowledge of circumstances when

the person is aware that such circumstances probably exist * * *.” R.C. 2901.22(B).

       {¶30} Under Ohio law, “a person may knowingly possess a substance or

object through either actual or constructive possession.” 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). A person has actual possession of a substance or object

“when it is within his immediate physical control.” State v. Coffman, 5th Dist.

Delaware No. 07 CA A 08 0042, 2008-Ohio-2163, ¶ 25, citing State v. Messer, 107

Ohio App.3d 51, 56 (9th Dist.1995). By contrast, “[c]onstructive 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.

Hankerson, 70 Ohio St.2d 87 (1982), syllabus.

       {¶31} In addition to the evidence presented at trial establishing the chain of

custody of the drugs retrieved from the apartment after the execution of the search

warrant and scientifically identifying the substances as cocaine and heroin, the State

presented the following testimony from Deputy Lowe regarding Gervin’s

possession of the drugs.

       Deputy Lowe: I get to the top of the landing. There’s a stairway
       and then there’s a landing. There’s a half wall to your left. I
       yelled and I immediately looked to my left and that’s when I
       observed Sabrina Brown [sic] and Mr. Gervin. I focused my
       attention directly to Mr. Gervin at that time.


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      ***

      Prosecutor:      (Pointing to photographs) Where was the
      Defendant? Can you tell me there? Obviously he’s gone at this
      point; is that correct?

      Deputy Lowe: Yes. He was laying right this way alongside the
      couch.

      Prosecutor: Okay. Was his—where was [sic] his arms?

      Deputy Lowe: Where that is open right there (pointing to
      photograph) is where his left hand ended up. You can see where
      that’s open, and right here was where his right hand was.

      Prosecutor: All right. I want to take you through this. When you
      come in, are you ordering him anything at that point?

      Deputy Lowe: Yes. At that point I’m strictly watching his hands.
      I’m ordering him to the ground; get on the ground, get on the
      ground. I wait. It’s safer for everybody in there including the
      Defendant.

      Prosecutor: And did he comply?

      Deputy Lowe: Yes. He was compliant.

      Prosecutor: Was he already laying down?

      Deputy Lowe: He was in the process of laying down.

      Prosecutor: And did you notice something?

      Deputy Lowe: Yes. I noticed a white plastic baggy.

      Prosecutor: And where was it?

      Deputy Lowe: Underneath his right hand.

      Prosecutor: His right hand was on top of it?

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Case No. 9-15-51



       Deputy Lowe: Yes.

       ***

       Prosecutor: And when you first saw it, tell me what you saw.

       Deputy Lowe: When I first come in, the stairs are right here
       (pointing to photograph). I come in here. That’s where I first see
       him. I make my way right here. That’s when I’m ordering him
       to the ground, you know. He’s complying at this point, you know,
       in the process of lying down.

       The first things that go down is [sic] his hands. When his hands
       go to the ground, that’s when I saw part of the white baggy
       sticking out from underneath his hand. From that point is when
       I go over to him. Obviously his hand’s off it at that point. I go
       over and I put him in handcuffs and that was it.

       Prosecutor: Did you see anything on the ground prior to him
       putting his hands on—

       Deputy Lowe: No, I did not.

       ***

       Prosecutor: So did it appear to you he was actually touching it at
       that time?

       Deputy Lowe: I couldn’t tell if it was touching it at the time. I
       could see—obviously I could see part of a white baggy underneath
       the palm of his hand. I don’t know how much of the baggy. I just
       know when I saw it, I could see the white baggy sticking out from
       the palm of his hand.

(Tr. at 140-45).

       {¶32} Deputy Lowe’s testimony was corroborated by the testimony of the

other law enforcement officers who also testified to Gervin’s location upon entering

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the apartment, which was in close proximity to where the white plastic baggy was

found. For example, Officer Andrew Isom, a Marion Police Officer with the

MARMET unit, testified “[w]hen I got up there, [Gervin] was laying on the floor

and the bag was just to his right.” (Tr. at 177). In addition, photographs taken at

the scene depicted the location on the floor where the drugs were found, which was

also the same location where Gervin was laying on the floor according to the

testimony at trial.

       {¶33} In construing the facts most strongly in favor of the prosecution as we

are required to do in considering a sufficiency challenge, we believe that the State

presented sufficient evidence to prove beyond a reasonable doubt that Gervin

possessed the cocaine and heroin found in the white plastic baggy on the floor of

the apartment. Deputy Lowe testified that he saw the white plastic baggy, which

was later determined to contain cocaine and heroin, under Gervin’s right palm after

he ordered Gervin to the ground. Deputy Lowe further testified that he did not see

the baggy on the floor prior to Gervin going to the ground. Officer Isom also

observed the white baggy on the ground laying to the right of Gervin. This

testimony along with the photographs demonstrating the location of the white plastic

baggy on the ground near where the testimony at trial placed Gervin together

provided sufficient evidence of Gervin’s immediate physical possession of the drugs

before his arrest.


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       {¶34} Additionally, for the reasons outlined in our discussion of his

sufficiency challenge, Gervin’s drug possession convictions are not against the

manifest weight of the evidence. The jury’s verdicts rest on its credibility

determinations of the witnesses at trial. We note that the weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of the facts.”

State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. In other

words, “jurors are entitled to believe the testimony offered by the State’s witnesses.”

State v. Wareham, 3d Dist. Crawford No. 3-12-11, 2013-Ohio-3191, ¶ 25, citing

State v. Bates, 12th Dist. Butler No. CA2009-06-174, 2010-Ohio-1723, ¶ 11. In this

instance, the jury clearly believed the State’s version of events and assigned weight

accordingly. Based upon the evidence it had before it, we cannot conclude that the

jury clearly lost its way and created such a manifest miscarriage of justice that the

convictions must be reversed. Accordingly, Gervin’s second assignment of error is

overruled.

       {¶35} For all these reasons, the assignments of error are overruled and the

judgment of conviction and sentence is affirmed.

                                                                 Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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