[Cite as State v. Koon, 2017-Ohio-8599.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     HOCKING COUNTY

STATE OF OHIO,                                :     Case No. 17CA5

        Plaintiff-Appellee,                   :

        v.                                    :     DECISION AND
                                                    JUDGMENT ENTRY
BRIAN KOON,                                   :
                                                    RELEASED: 11/06/2017
        Defendant-Appellant,                   :
                                           APPEARANCES:

Brian Koon, Madison County Correctional Institution, London, Ohio, pro se appellant.

Benjamin E. Fickel, Hocking County Prosecuting Attorney, and Jorden M. Meadows,
Hocking County Assistant Prosecuting Attorney, Logan, Ohio, for appellee.
Harsha, J.
        {¶1}     Following his conviction for possession of heroin, Brian C. Koon filed a

petition for postconviction relief relying on the Supreme Court of Ohio’s decision in State

v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319, 81 N.E.3d 405, to argue that his

conviction was not supported by sufficient evidence and was against the manifest

weight of the evidence. The trial court denied the petition.

        {¶2}     Koon asserts that the trial court erred in denying the petition. We reject

Koon’s assertion because, as the trial court concluded, the Supreme Court of Ohio

reconsidered and vacated its decision in Gonzales. Moreover, res judicata bars Koon

from contesting the sufficiency or manifest weight of the evidence supporting his

conviction. We overrule his assignment of error and affirm the judgment of the trial

court denying his petition for postconviction relief.

                                             I. FACTS
Hocking App. No. 17CA5                                                                2


       {¶3}   The Hocking County Grand Jury returned an indictment charging Brian C.

Koon with one count of trafficking in heroin, one count of possession of heroin, and one

count of endangering children. Koon pleaded not guilty to the charges, and the case

proceeded to a jury trial.

       {¶4}   The state introduced evidence that Koon had been a passenger in a

vehicle that had rolled over several times and discharged many items from the inside.

State troopers who arrived at the scene found a “loaded” syringe containing .403 grams

of heroin, additional heroin weighing 19.452 grams, and other evidence of drug use

located within the “debris field” left by the accident involving the vehicle. The troopers

witnessed Koon diligently searching the field for the items thrown from the vehicle

instead of attending to his injured 12-year-old son, who was lying on the pavement

screaming in pain.

       {¶5}   Koon acknowledged the ownership of the items that were lying in the

debris field by telling a trooper that “his whole life was ruined and scattered on the

ground.” The troopers noticed a sticky brown substance on Koon’s shirt that he claimed

was mud or dirt from the accident, but which one of the troopers believed, based on his

experience, was liquefied heroin.

       {¶6}   The jury returned a verdict finding Koon guilty of possession of drugs and

endangering children and acquitting him of the drug trafficking charge. For the drug

possession charge, the jury returned a special verdict finding that Koon possessed 10

grams of heroin.

       {¶7}   Following the trial Koon filed a motion for new trial, arguing that the jury’s

finding that he possessed 10 grams of heroin was not supported by sufficient evidence.
Hocking App. No. 17CA5                                                                3


He also filed a motion for acquittal contending that his conviction for endangering

children was not supported by sufficient evidence. The trial court granted Koon’s

motion for acquittal on the endangering children charge, but denied his motion for new

trial on the possession of heroin conviction.

       {¶8}   After sentencing Koon appealed, arguing in part that his conviction for

possession of heroin was not supported by sufficient evidence and was against the

manifest weight of the evidence. He also claimed that the trial court erred by denying

his motion for new trial. We rejected Koon’s claims, finding that in considering the

evidence in a light most favorable to the state, sufficient evidence supported the court’s

determination that the state introduced the essential elements of the crime of

possession of heroin. State v. Koon, 4th Dist. Hocking No. 15CA17, 2016-Ohio-416, ¶

24. We also found that the jury did not clearly lose its way or create a manifest

miscarriage of justice. Id. We noted that the “state introduced evidence that the heroin

found in the debris field exceeded 10 grams, so the jury’s determination that Koon had

constructive possession of 10 grams of the heroin was supported by the evidence.” Id.

at ¶ 23. “[T]he state introduced evidence from which the jury could have reasonably

concluded that he possessed as much as 19 grams of the heroin recovered from the

scene of the accident.” Id. at ¶ 34.

       {¶9}   The Supreme Court of Ohio did not accept Koon’s discretionary appeal

from our decision, State v. Koon, 146 Ohio St.3d 1416, 2016-Ohio-3390, 51 N.E.3d 660,

and a federal district court dismissed his habeas corpus petition raising the same

evidentiary issues. Koon v. Warden, Madison Corr. Inst., S.D. Ohio No. 2:16-CV-

00950, 2017 WL 1106372 (Mar. 24, 2017).
Hocking App. No. 17CA5                                                               4


       {¶10} In 2017, Koon filed a petition for postconviction relief that claimed that his

conviction for possession of heroin should be vacated because based on the Supreme

Court of Ohio’s decision in State v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319, 81

N.E.3d 405, it was not based on sufficient evidence and was against the manifest

weight of the evidence. After the state filed a memorandum in opposition noting that the

Supreme Court had vacated its decision in Gonzales, the trial court denied the petition.

                               II. ASSIGNMENT OF ERROR

       {¶11} Koon assigns the following error for our review:

       THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO
       CONVICT APPELLANT OF POSSESSING HEROIN WEIGHING 10
       GRAMS WHEN THE SAMPLE, WHEN WEIGHED, CONTAINED 19.855
       GRAMS.

                               III. STANDARD OF REVIEW

       {¶12} The postconviction relief process is a collateral civil attack on a criminal

judgment rather than an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279,

281, 714 N.E.2d 905 (1999). Postconviction relief is not a constitutional right; instead, it

is a narrow remedy that gives the petitioner no more rights than those granted by

statute. Id. It is a means to resolve constitutional claims that cannot be addressed on

direct appeal because the evidence supporting the claims is not contained in the record.

State v. Knauff, 4th Dist. Adams No. 13CA976, 2014–Ohio–308, ¶ 18.

       {¶13} “[A] trial court's decision granting or denying a postconviction relief petition

filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a

reviewing court should not overrule the trial court's finding on a petition for

postconviction relief that is supported by competent and credible evidence.” State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. A trial court
Hocking App. No. 17CA5                                                              5

abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable. In

re H. V., 138 Ohio St.3d 408, 2014-Ohio-812, 7 N.E.3d 1173, ¶ 8.

                                IV. LAW AND ANALYSIS

       {¶14} In his assignment of error Koon asserts that his conviction for heroin

possession was not supported by sufficient evidence.

       {¶15} We reject Koon’s assertion. First, his postconviction relief petition was

premised on the Supreme Court of Ohio’s decision in Gonzales, 150 Ohio St.3d 261,

2016-Ohio-8319, 81 N.E.3d 405, where the court held that in prosecuting cocaine-

possession offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed

substances, the state must prove that the weight of the actual cocaine, excluding the

weight of any filler materials, meets the statutory threshold. But as the state argued and

the trial court concluded, the Supreme Court vacated that decision on reconsideration,

holding that the “entire ‘compound, mixture, preparation, or substance,’ including any

fillers that are part of the usable drug, must be considered for the purpose of

determining the appropriate penalty for cocaine possession under R.C. 2925.11(C)(4).”

State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 405, ¶ 3. Therefore,

Koon’s postconviction petition was based on a case that is no longer good law.

       {¶16} Second, Koon’s attack on the sufficiency or manifest weight of the

evidence to support his conviction was barred by res judicata. “ ‘Under the doctrine of

res judicata, a final judgment of conviction bars a convicted defendant who was

represented by counsel from raising and litigating in any proceeding except an appeal

from that judgment, any defense or claimed lack of due process that was raised or could

have been raised by the defendant at the trial, * * * or on appeal from that judgment.’ ”
Hocking App. No. 17CA5                                                                6

State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996), quoting State v. Perry,

10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus; see also

State v. Davis, 139 Ohio St.3d 122, 2014-Ohio-1615, 9 N.E.3d 1031, ¶ 28. “ ‘Res

judicata does not, however, apply only to direct appeals, but to all postconviction

proceedings in which an issue was or could have been raised.’ ” State v. Heid, 4th Dist.

Scioto No. 15CA3710, 2016-Ohio-2756, ¶ 18, quoting State v. Montgomery, 2013-Ohio-

4193, 997 N.E.2d 579, ¶ 42 (8th Dist.). He raised these issues unsuccessfully on

appeal and in his federal habeas corpus action; he could not relitigate them in his

petition for postconviction relief.

       {¶17} Therefore, because res judicata barred Koon’s claims and the case he

cited in support of his petition was vacated, the trial court did not abuse its discretion by

denying him the requested postconviction relief. We overrule his assignment of error.

                                      V. CONCLUSION

       {¶18} Having overruled Koon’s assignment of error, we affirm the judgment of

the trial court denying his petition for postconviction relief.

                                                                  JUDGMENT AFFIRMED.
Hocking App. No. 17CA5                                                            7


                                   JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Hocking
County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J. & McFarland, J.: Concur in Judgement & Opinion.


                                   For the Court




                                   BY: ________________________________
                                       William H. Harsha, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
