[Cite as State v. Rogers, 2019-Ohio-483.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Craig R. Baldwin, J.
                          Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2018 AP 07 0028
DAVID E. ROGERS                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Tuscarawas
                                                   County Court of Common Pleas, Case No.
                                                   2017 CR 04 0103



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            February 11, 2019



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

MICHAEL ERNEST                                     JASON JACKSON
Assistant Prosecuting Attorney                     Box 308
125 East High Avenue                               Uhrichsville, OH 44683
New Philadelphia, OH 44663
[Cite as State v. Rogers, 2019-Ohio-483.]


Gwin, P.J.

        {¶1}     Appellant David E. Rogers [“Rogers”] appeals his conviction and sentence

after a jury trial in the Tuscarawas County Court of Common Pleas.

                                            Facts and Procedural History

        {¶2}     Rogers was driving a car owned by a friend. The friend was in the backseat.

She was not driving because her license is under suspension. Sergeant Joel Smith of

the Ohio State Highway Patrol testified that he witnessed a vehicle cross the white fog

line three times, and, shortly thereafter, made a traffic stop. The stop and subsequent

encounter were recorded on the camera in Sergeant Smith’s cruiser. (State’s Exhibit A).

        {¶3}      Sergeant Smith approached the vehicle and initially spoke with Rogers.

Sergeant Smith testified that he smelled burnt marijuana as soon as he approached the

vehicle and at that time called for the drug dog. Sergeant Smith then removed Rogers

from the vehicle and left two persons inside the vehicle, unattended, for a total of fourteen

minutes.

        {¶4}     When the dog arrived, the two passengers were removed from the vehicle.

The male passenger was placed in a vehicle with Rogers. The female passenger was

placed in another Trooper's vehicle. During the search, the dog indicated on the vehicle

and the Troopers searched the vehicle.

        {¶5}     While searching the vehicle the Troopers found a needle that appeared to be

full of a brown liquid on the floorboard beside the driver's seat along with a rubber hose and a

pack of rolling papers. The camera located in the cruiser picked up a voice, which Sergeant

Smith testified was Rogers, saying, "They found it.” The other male passenger states that he

cannot go back to jail. Rogers then says, "It's mine, I'll take it, you know me.” [Appellant’s Brief
Tuscarawas County, Case No. 2018 AP 07 0028                                                      3


at 1; State’s Brief at 2]. Sergeant Smith testified that he then informed the occupants of the

vehicle about the items that he had found and everyone denied any knowledge of the materials

being in the vehicle. The contents of the needle were then packaged and mailed to the Ohio

State Highway Patrol Crime Lab for testing.

       {¶6}    The state called Jaqueline Smith of the Ohio State Highway Patrol Crime Lab.

Ms. Smith testified that she is a criminalist. Ms. Smith indicated that a criminalist tests the

evidence submitted by troopers and other outside agencies for the presence or absence of

controlled substances. According to Ms. Smith, the substance found within the syringe was

Carfentanyl, a Schedule II Controlled Substance. (T. at 118 - 119). Rodgers did not testify and

presented no evidence.

       {¶7}    The jury found Rogers guilty of one count of Aggravated Possession of Drugs in

violation of R.C. 2925.11, a felony of the fifth degree. By Judgment Entry filed June 27, 2018, the

trial court sentenced Rogers to three years of community control sanctions with a 12-month

prison sentenced reserved. Rogers was given credit for 179 jail days.

                                            Assignment of Error

       {¶8}    Rogers raises one assignment of error,

       {¶9}    “I. THE CONVICTION OF DAVID ROGERS WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

                                              Law and Analysis

       {¶10} Rogers argues the weight of the evidence supports that the passenger had the

opportunity, i.e. 14 minutes in the vehicle unsupervised and a motive, i.e. not wanting to go back

to jail, to frame Rogers. [Appellant’s Brief at 4].

       STANDARD OF APPELLATE REVIEW.
Tuscarawas County, Case No. 2018 AP 07 0028                                                      4


       {¶11} Concerning the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the evidence of

guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541

(1997), superseded by constitutional amendment on other grounds as stated by State v. Smith,

80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v. Issa, 93 Ohio St.3d 49, 67, 752

N.E.2d 904 (2001).

       “[I]n determining whether the judgment below is manifestly against the weight of

       the evidence, every reasonable intendment and every reasonable presumption

       must be made in favor of the judgment and the finding of facts.

                                               ***

        “If the evidence is susceptible of more than one construction, the reviewing court

       is bound to give it that interpretation which is consistent with the verdict and

       judgment, most favorable to sustaining the verdict and judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3,

quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶12} The reviewing court must bear in mind, however, that credibility generally is an

issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

Because the trier of fact sees and hears the witnesses and is particularly competent to decide

whether, and to what extent, to credit the testimony of particular witnesses, the appellate court

must afford substantial deference to its determinations of credibility. Barberton v. Jenney, 126

Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20, superseded by statute on other grounds

as stated in In re Z.E.N., 4th Dist. Scioto No. 18CA3826, 2018-Ohio-2208, ¶ 27. In other words,

“[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of
Tuscarawas County, Case No. 2018 AP 07 0028                                                           5


events, neither of which is unbelievable, it is not our province to choose which one we believe.”

State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–Ohio–1152, at ¶ 13, citing State v. Gore,

131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist. 1999). Thus, an appellate court will leave

the issues of weight and credibility of the evidence to the fact finder, as long as a rational basis

exists in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–

Ohio–1282, ¶ 24.

       {¶13} Once the reviewing court finishes its examination, an appellate court may not

merely substitute its view for that of the jury, but must find that “ ‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly, reversal on manifest

weight grounds is reserved for “the exceptional case in which the evidence weighs heavily

against the conviction.” Id.

       ISSUE FOR APPEAL.

       A. Whether the jury clearly lost their way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.

       {¶14} R.C. 2925.01(K) defines possession 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.” R.C. 2901.21 provides the requirements for criminal liability and provides

that possession is a “voluntary act if the possessor knowingly procured or received the thing

possessed, or was aware of the possessor's control of the thing possessed for sufficient time to

have ended possession.” R.C. 2901.21(D)(1).
Tuscarawas County, Case No. 2018 AP 07 0028                                                         6

       {¶15} Possession may be actual or constructive. State v. Butler, 42 Ohio St.3d 174,

176, 538 N.E.2d 98(1989). To establish constructive possession, the evidence must prove that

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

46 Ohio St.2d 316, 332, 348 N.E.2d 351(1976). Dominion and control may be proven by

circumstantial evidence alone. State v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93 (8th Dist.

2000). Circumstantial evidence that the defendant was located in very close proximity to the

contraband may show constructive possession. State v. Butler, supra; State v. Morales, 5th Dist.

Licking No.2004 CA 68, 2005-Ohio-4714, ¶ 50. Ownership of the contraband need not be

established in order to find constructive possession. State v. Smith, 9th Dist. Summit No. 20885,

2002-Ohio-3034, ¶13. Furthermore, possession may be individual or joint. Wolery, 46 Ohio

St.2d at 332, 348 N.E.2d 351. Multiple individuals may constructively possess a particular item

simultaneously. State v. Pitts, 4th Dist. Scioto No. 99 CA 2675, 2000-Ohio-1986. The Supreme

Court has held that knowledge of illegal goods on one's property is sufficient to show constructive

possession. State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d 1362, 1365(1982), certiorari

denied (1982), 459 U.S. 870, 103 S.Ct. 155, 74 L.Ed.2d 130.

       {¶16} If the state relies on circumstantial evidence to prove an essential element of an

offense, it is not necessary for “‘such evidence to be irreconcilable with any reasonable theory of

innocence in order to support a conviction.’” State v. Jenks, 61 Ohio St. 3d 259, 272, 574 N.E.

2d 492(1991) at paragraph one of the syllabus. “‘Circumstantial evidence and direct evidence

inherently possess the same probative value [.]’” Jenks, 61 Ohio St .3d at paragraph one of the

syllabus.     Furthermore, “‘[s]ince circumstantial evidence and direct evidence are

indistinguishable so far as the jury's fact-finding function is concerned, all that is required of the
Tuscarawas County, Case No. 2018 AP 07 0028                                                        7


jury is that i[t] weigh all of the evidence, direct and circumstantial, against the standard of proof

beyond a reasonable doubt.’” Jenks, 61 Ohio St. 3d at 272, 574 N.E. 2d 492.

       {¶17} In Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d

777(1979), the United States Supreme Court upheld a statute which provided that the presence

in an automobile, other than a public one, of a firearm “is presumptive evidence of its possession

by all persons occupying such automobile at the time except (a) where the firearm is found upon

the person of an occupant, (b) where the automobile is being operated for hire by a licensed

operator or (c) if the weapon is a handgun and one of the occupants, not present under duress,

has a license to have a handgun.” Id. at 442 U.S. 142-143, 99 S.Ct. 2217. The Court noted that

the presumption was not mandatory; rather it was a permissive inference available only in certain

circumstances. Further, the jury could ignore the presumption even if there was no affirmative

proof offered in rebuttal by the accused. Id. at 160-162, 99 S.Ct. at 2226-2227. Finally, the trial

judge in Allen explained, “that possession could be actual or constructive, but that constructive

possession could not exist without the intent and ability to exercise control or dominion over the

weapons.” Id. at 161, 99 S.Ct. at 2226.

       {¶18} In the case at bar, Rogers was driving the car. The drugs were found next to the

seat upon which he had been sitting. Rogers argues that he was unaware of the drugs and that

other individuals in the car had a motive to frame him.

       {¶19} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant’s conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
Tuscarawas County, Case No. 2018 AP 07 0028                                             8

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n. 4,

684 N.E.2d 668 (1997).

      {¶20} In the case at bar, the jury heard the witnesses, viewed the evidence and

heard Rogers’ attorney’s arguments and explanations about Rogers, the others inside the

car and the investigating officers’ actions. The jury was able to see for themselves

Sergeant Smith subject to cross-examination. The jury had a real-time recording of the

traffic stop and the encounter. Thus, a rational basis exists in the record for the jury’s

decision.

      {¶21} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury

neither lost his way nor created a miscarriage of justice in convicting Rogers of

aggravated possession of drugs.
Tuscarawas County, Case No. 2018 AP 07 0028                                            9


      {¶22} Based upon the foregoing and the entire record in this matter we find

Rogers’ conviction for aggravated possession of drugs is not against the manifest weight

of the evidence. To the contrary, the jury appears to have fairly and impartially decided

that matter. The jury heard the witnesses, evaluated the evidence, and was convinced

of Rogers’ guilt of aggravated possession of drugs.

      {¶23} Rogers’ sole assignment of error is overruled.

      {¶24} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur
