[Cite as State v. Graziani, 2010-Ohio-3550.]




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



STATE OF OHIO,                                            CASE NO. 4-10-01

   PLAINTIFF-APPELLEE,

  v.

BRIAN L. GRAZIANI,                                           OPINION

   DEFENDANT-APPELLANT.



                 Appeal from Defiance County Common Pleas Court
                            Trial Court No. 08CR10393

                                      Judgment Affirmed

                              Date of Decision: August 2, 2010




APPEARANCES:

        Todd B. Guelde, for Appellant

        Russell R. Herman, for Appellee
Case No. 4-10-01



WILLAMOWSKI, P.J.,

        {¶1} Defendant-Appellant, Brian L. Graziani (“Graziani”), appeals the

judgment of the Defiance County Court of Common Pleas finding him guilty of

possession of illegal drugs. On appeal, Graziani claims that there was insufficient

evidence to support the jury’s verdict and that the trial court erred when it denied

his motion to suppress because Graziani did not voluntarily consent to a search of

the interior of his truck. For the reasons set forth below, the judgment is affirmed.

        {¶2} On September 20, 2008, at approximately 3:20 a.m., Deputy Austin

Cape of the Defiance County Sheriff’s Department observed a pick-up truck

pulling out from behind a local business, Martin Diesel, with a large amount of

wire hanging out of the bed of the truck. Deputy Cape initiated a traffic stop due

to his suspicion that the wire might have been stolen. The deputy asked Graziani,

who was driving the vehicle, to step outside the truck while he questioned him.

During this time, the deputy also kept a close watch on the female passenger,

Samantha Fenter1 (“Ms. Fenter” or “Samantha”), who remained alone in the

vehicle for less than ten minutes while the deputy questioned Graziani.

        {¶3} Graziani told the deputy that he and Ms. Fenter were “parking”

behind Martin Diesel for a “romantic interlude,” and that they did not steal

anything from the company. He explained that the wire and items in the back of

1
 Samantha Fenter claimed she did not have her I.D., and she gave the officer the name and Social Security
number of her twin sister, Cindel Fenter. Samantha was on community control for shoplifting at the time
and being out this late was in violation of her curfew.


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the truck were given to him by his girlfriend’s relative. The deputy asked Graziani

if there was anything illegal in the vehicle and also asked if it would be all right to

search the vehicle. Graziani denied that there was anything illegal in the truck and

consented to a search.

       {¶4} Deputy Cape radioed that he would be conducting a vehicle search

and asked Ms. Fenton to exit the vehicle. Shortly thereafter, Deputy Dana Phipps

arrived to provide back-up support. The proprietors of Martin Diesel were also

called. They confirmed that the items in the back of the truck did not belong to the

business. They also checked out the business premises with Deputy Phipps and

determined that it did not appear as if anything had been taken.

       {¶5} During the search of the vehicle, Deputy Cape discovered a black

electronic scale with powdery residue in the glove compartment in front of the

passenger seat. He also discovered two glass pipes in a case behind the driver’s

visor. The pipes were the kind commonly used for illegal substances and they also

contained residue. The pipes and scale were taken as evidence and sent to a

laboratory for further testing. After confirming that the items in the back of the

truck had not been stolen from the business, Graziani and Ms. Fenter were

permitted to leave.

       {¶6} The laboratory results showed that the residue on the scale was

cocaine and the residue in the pipe was methamphetamine. On December 8, 2008,

the Defiance County Grand Jury indicted Graziani on the following two counts:


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Count 1 – possession of cocaine, a felony of the fifth degree in violation of R.C.

2925.11(A)(C)(4)(a); and Count 2 – aggravated possession of drugs, a felony of

the fifth degree in violation of R.C. 2925.11(A)(C)(1)(a).

       {¶7} Graziani filed a motion to suppress and a hearing was held on June

12, 2009. At the hearing, Graziani claimed that his permission to search the

vehicle was not voluntarily given and that it did not extend to the interior of the

vehicle. The trial court denied the motion to suppress.

       {¶8} On October 27, 2009, a trial was held and the jury heard the

testimony of Deputy Cape, Deputy Phipps, and the deputy in charge of the chain

of custody for the evidence. Ms. Fenter and her twin sister were called by the

defense to testify. The jury found Graziani guilty of both counts in the indictment.

       {¶9} On December 16, 2009, after reviewing the pre-sentence

investigation report, the trial court sentenced Graziani to eleven months in prison

on each of the counts, with the sentences to run consecutively. The judgment

entry was filed January 11, 2010, and it is from this decision that Graziani appeals,

raising the following two assignments of error for our review.

                            First Assignment of Error

       The verdict for Count 1 was not supported by sufficient evidence
       to prove beyond a reasonable doubt that Mr. Graziani
       knowingly obtained, possessed, or used cocaine, a violation of
       R.C. 2925.11(A)(C)(4)(a).




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                                 Second Assignment of Error

        The trial Court erred in denying Mr. Graziani’s Motion to
        Suppress when it determined that the totality of circumstances
        establish[ed] that Mr. Graziani voluntarily consented to the
        search of the vehicle.

        {¶10} In the first assignment of error, Graziani argues that there was

insufficient evidence for the jury to find that he was guilty beyond a reasonable

doubt of knowingly possessing a controlled substance, namely cocaine.2 Graziani

contends that the State did not produce sufficient direct or circumstantial evidence

to support a finding that Graziani was conscious of the presence of the black scale

with drug residue that was found in the glove compartment. He contends that

there was no evidence that the vehicle belonged to him and that his female

passenger, a convicted drug offender,3 could have placed the evidence in the glove

compartment during the time she was sitting alone in the vehicle.

        {¶11} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence

submitted at trial, if believed, could reasonably support a finding of guilt beyond a

reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52,

678 N.E.2d 541, 546 (stating, “sufficiency is the test of adequacy”); State v. Jenks

(1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503. The standard of review is

2
  Graziani has not appealed the jury’s verdict on the second count of the indictment for the aggravated
possession of drugs associated with the methamphetamine found with the glass pipes.
3
  Graziani consistently refers to Ms. Fenter as a convicted drug offender and states that she was on parole
for a drug offense when the truck was stopped. However, she testified that at the time she was only on
probation for shoplifting; she was placed on probation for buying Pseudoephedrine at a later time.


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whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the offense

beyond a reasonable doubt. Jenks, supra. This test raises a question of law and

does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio

App.3d 172, 175, 485 N.E.2d 717.

       {¶12} Graziani was charged with a violation of R.C. 2925.11(A)(C)(4)(a),

which reads in pertinent part that “[n]o person shall knowingly obtain, possess, or

use a controlled substance.” The Revised Code defines “possession” as “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); State v. Pierce, 3d Dist.

No. 11-09-05, 2010-Ohio-478, ¶15. The issue of whether a person charged with

drug possession knowingly possessed a controlled substance “is to be determined

from all the attendant facts and circumstances available.” State v. Teamer, 82

Ohio St.3d 490, 492, 1998-Ohio-193, 696 N.E.2d 1049.

       {¶13} Drug possession may be shown by either actual or constructive

possession. State v. Pope, 3d Dist. No. 13-06-05, 2006-Ohio-4318, ¶14. An

individual is in constructive possession when he is able to exercise dominion and

control over an item even though it is not in his physical possession. State v.

Wolery (1976), 46 Ohio St.2d 316, 348, N.E.2d 351. Dominion and control may

be proven by circumstantial evidence alone. State v. Trembly (2000), 137 Ohio


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App.3d 134, 141, 738 N.E.2d 93. Ownership of the drugs need not be established

for constructive possession. State v. Mann (1993) 93 Ohio App.3d 301, 308, 638

N.E.2d 585.

        {¶14} The scale with drug residue was found in the glove compartment of

the truck that Graziani was driving and using. Although there was no evidence

that Graziani owned the truck, such ownership would not be necessary to show he

had possession, use, and control of the vehicle and constructive possession of the

drug paraphernalia.          Deputy Cape testified that Graziani had stated he had

borrowed the truck, but there was no evidence that it belonged to anyone else.4

        {¶15} On appeal, Graziani suggests that Ms. Fenter had close access to the

glove compartment and she could have placed the scale in it while the deputy was

questioning Graziani. However, Deputy Cape testified that Ms. Fenter was only

alone in the vehicle for a very short time, perhaps five to seven minutes; that the

interior of the vehicle was illuminated by his patrol lights so he could carefully

watch her; that he had told her to sit still for security reasons, and she complied;

and that she did not make any furtive movements nor did she do anything that

would indicate she was hiding something. Deputy Cape stated, “I just need to

make sure that that passenger is not moving for something or trying to do

something that could potentially harm me or anybody else.” (Trial Tr., p. 126.)

The deputy consistently testified that he did not see her make any movements.
4
 At the suppression hearing, Graziani consistently testified about “my truck” and the items in the back of
“my truck” and did not correct references regarding permission to search “your vehicle.”


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       {¶16} Ms. Fenter also testified, stating that she had told Officer Cape that

the scale and pipe were not hers. She repeatedly denied ownership of the items

when questioned at trial, and definitively answered that she had not placed the

items in the glove compartment or above the visor. She stated that she did not

know who the drug-related items belonged to and further testified that “I didn’t

even know they were in the truck.” (Id. at p. 176.)

       {¶17} In a case with many similar facts, this Court recently found that there

was sufficient evidence to find the defendant had constructive possession of the

drug contaminated paraphernalia found in the glove compartment even without

evidence that the defendant owned the vehicle and even though he was not

occupying the vehicle at the time. See Pierce, supra, 2010-Ohio-478. Based upon

the totality of the facts and circumstances, and viewing the evidence in a light

most favorable to the prosecution, we find that there was sufficient evidence of

each of the essential elements of the offense that could convince the average juror

of Graziani’s guilt beyond a reasonable doubt. Graziani’s first assignment of error

is overruled.

       {¶18} In his second assignment of error, Graziani argues that the trial court

erred in overruling his motion to suppress. Graziani had previously stipulated that

the deputy had a reasonable and articulable suspicion to initiate the traffic stop. It

is also uncontroverted that Graziani consented to a search of the vehicle he was

operating. However, Graziani contests the extent of that consent, claiming it was


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limited to only the outside truck bed. Furthermore, he argues that his consent was

not voluntarily offered, but rather, was given under duress.

       {¶19} The standard of review for a motion to suppress has been determined

by the Supreme Court of Ohio:

       Appellate review of a motion to suppress presents a mixed
       question of law and fact. When considering a motion to
       suppress, the trial court assumes the role of trier of fact and is
       therefore in the best position to resolve factual questions and
       evaluate the credibility of witnesses. State v. Mills (1992), 62
       Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an appellate
       court must accept the trial court's findings of fact if they are
       supported by competent, credible evidence. State v. Fanning
       (1982), 1 Ohio St.3d 19, [20], 1 OBR 57, 437 N.E.2d 583.
       Accepting these facts as true, the appellate court must then
       independently determine, without deference to the conclusion of
       the trial court, whether the facts satisfy the applicable legal
       standard. State v. McNamara (1997), 124 Ohio App.3d 706, 707
       N.E.2d 539.

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8; State

v. Riter, 3d Dist. No. 4-08-29, 2008-Ohio-6752, ¶3.

       {¶20} When an individual voluntarily consents to a search, there is no

Fourth Amendment violation. State v. O’Neal, 3d Dist. No. 1-07-33, 2008-Ohio-

512, ¶27.   The question as to whether consent to a search was voluntary or the

product of duress or coercion, express or implied, is a question of fact to be

determined from the totality of the circumstances. State v. Roberts, 110 Ohio

St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶99. “The standard for measuring

the scope of consent under the Fourth Amendment is objective reasonableness,



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i.e., what a typical reasonable person would have understood by the exchange

between the officer and the suspect.” Id.

           {¶21} Furthermore, “when the subject of a search is not in custody and the

State attempts to justify a search on the basis of his consent, the Fourth and

Fourteenth Amendments require that it demonstrate that the consent was in fact

voluntarily given, and not the result of duress or coercion, express or implied.

Voluntariness is a question of fact to be determined from all the circumstances

***.” State v. Robinette, 80 Ohio St.3d 234, 242-43, 1997-Ohio-343, 685 N.E.2d

762, quoting Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 93 S.Ct.

2041, 2059, 36 L.Ed.2d 854, 875.

           {¶22} At the hearing on the motion to suppress, Graziani claimed that he

felt he was under duress because he testified that he had been detained for several

hours and he believed he was not “going to get to go home.” However, Deputy

Cape testified that he radioed dispatch as to what was occurring during the traffic

stop, and entered the Defiance County Sheriff’s Office Detail Call Sheet5 into

evidence. The call sheet showed, and the deputy testified, that the stop was made

at approximately 3:22 a.m.                  Shortly thereafter, he stated that he “asked Mr.

Graziani if there was anything illegal inside the vehicle and he stated that there

was not at which point I asked for consent to search the vehicle and he gave me

consent.” (June 12, 2009 Hearing Tr., p. 9.) At that point, he called in the search,

5
    The keeper of the records for the call center also testified concerning the records and procedure.


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and the call sheet showed “Log Consent to Search” at 3:31 a.m. Several other

notations were made, mostly concerning checking the premises at Martin Diesel

and contacting the owners. Deputy Cape testified that the search of the vehicle

was conducted almost immediately. The call sheet showed the deputies cleared

the scene at 4:15 a.m. Deputy Phipps also testified and corroborated Deputy

Cape’s timeline, confirming that he heard over the radio that Deputy Cape had

found the drug paraphernalia prior to his checking the premises at Martin Diesel.

       {¶23} Graziani, however, testified that he was detained for “a couple

hours” and that the deputy did not ask his permission to search the vehicle until

after they had checked the premises at Martin Diesel. Graziani said it had been

approximately “two, two and a half hours” before he was asked if the deputy could

search the vehicle. Graziani stated that the deputy said, “do I have consent to

search your vehicle and I said I guess and that’s when he went through my pick-

up.” Graziani further stated that, “I had already been sitting there and all this time

I was wondering, you know, I didn’t even think I was going to get to go home.

That’s why I said yes.” (Hearing Tr. p. 38-39.)

       {¶24} Not only do the deputies’ testimony and the dispatch call records

contradict Graziani’s story, but even Graziani testified that at the time he said he

gave consent to search the vehicle, he was no longer in handcuffs and that he and

the other deputy were “joking around” about what he had been doing behind the




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building. (Hearing Tr. p. 37.) The record does not indicate Graziani was under

duress or that the consent to search was coerced.

      {¶25} Although Graziani claims he only gave the deputy permission to

search the bed of the pick-up truck, the deputy’s testimony does not reflect that

limitation. On cross-examination, Graziani’s counsel questioned Deputy Cape as

follows:

      Q.     Deputy Cape, exactly what did you say to Mr. Graziani
             when you asked was there anything illegal?

      A.     Normally, when I walk up to a vehicle, I’ll say is, you
             know, there anything illegal in your vehicle just to give
             people an option of, you know, being honest if there is
             something inside. Nine times out of ten people say no,
             there’s nothing illegal in here which Mr. Graziani said
             that there wasn’t anything illegal in the vehicle

      Q.     Do you recall whether he gave consent to search only the
             bed of the truck?

      A.     I – I know I never get specific with anything like that. I’ll
             just always say may I search your vehicle or, you know,
             do you mind if I take a look through it or something along
             those lines. I never get specific on which area.

      Q.     Do you recall whether he said yes, you can search the
             truck or yes, you can search the bed of the truck?

      A.     I don’t recall.

      Q.     You don’t recall? Okay. Is it possible that he told you
             you can only search the bed of the truck?

      A.     I think if somebody would have told me that, I would, you
             know, I only needed to search one area, I probably would
             have stuck just to that because, you know, they can tell


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              you yes, you can’t search this area or no, you can’t search
              that area.

   (Hearing Tr., pp. 17-18.)

       {¶26} The trial court found that the testimony of the deputies, including the

consideration of the dispatch logs which were effectively a contemporaneous

documentation made by the deputies, was more credible than Graziani’s version of

the events. Based on the totality of the circumstances presented, we conclude that

a typical reasonable person would have understood by the exchange between

Deputy Cape and Graziani that Graziani gave his voluntary consent to search the

entire vehicle.    The trial court properly denied the motion to suppress.

Accordingly, we overrule this claim of error.

       {¶27} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment affirmed

SHAW and PRESTON, J.J., concur.

/jnc




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