[Cite as State v. Phillips, 2014-Ohio-4335.]




                              IN THE COURT OF APPEALS OF OHIO
                                  SIXTH APPELLATE DISTRICT
                                       LUCAS COUNTY


State of Ohio                                      Court of Appeals No. L-13-1158

        Appellee                                   Trial Court No. CR0201301685

v.

Jeronica Phillips                                  DECISION AND JUDGMENT

        Appellant                                  Decided: September 26, 2014

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Patricia Horner, for appellant.

                                               *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Jeronica Phillips, appeals the July 9, 2013 judgment of

the Lucas County Court of Common Pleas which, following a jury trial convicting him of

possession of cocaine, sentenced appellant to a prison sentence of ten months plus 861
days for violating the terms of his postrelease control in two prior cases. For the reasons

set forth herein, we affirm.

       {¶ 2} On May 2, 2013, appellant was indicted on one count of possession of

cocaine, R.C. 2925.11(A) and (C)(4)(a). Appellant entered a not guilty plea to the

charge. On July 1, 2013, the matter proceeded to trial and the following relevant

evidence was presented. On April 4, 2013, at approximately 7:00 to 8:00 p.m., Toledo

Police Officers Andrew Crisp and Anthony Barwiler were on patrol in a marked police

wagon when they were dispatched to a home on Cone Street in Toledo, Lucas County,

Ohio, where a female complainant stated that appellant was “beating” on her door and

that she did not want to let him in. The street was a known high-crime area. Upon

arrival, they were informed that appellant had just left the premises. The woman

informed the officers of the location of appellant’s residence and gave a description of his

vehicle. The officers proceeded to his residence which was approximately one mile from

the Cone location. Just as they arrived, they received a call that appellant had returned to

the Cone address.

       {¶ 3} Returning to the complainant’s street, they observed appellant sitting in the

passenger seat of the suspect vehicle. Officer Crisp immediately activated the overhead

lights which triggered the dashboard video camera; the video was played twice for the

jury and narrated by each officer. Officer Barwiler stated that both he and Officer Crisp

ordered appellant to put his hands up but that appellant put and kept his hand in his right

pocket. Barwiler stated that he grabbed appellant’s right hand to “lock it in place” in case




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he had a weapon and that Officer Crisp grabbed appellant’s left side. According to

Officer Barwiler, the two then effectuated a take-down of appellant. Barwiler stated that

Officer Crisp actually spun him and appellant around as they were getting appellant to the

ground and that is when, he believed, appellant’s hand flew out of his pocket. A plastic

baggie containing crack cocaine was found 12 to 24 inches to the right side of where

appellant had been on the ground. Although no one was in the immediate vicinity, the

officers admitted that it was possible that someone else had dropped the baggie and that

there was other garbage on the ground.

       {¶ 4} Detective Andre Bills testified that Officer Crisp gave him the baggie of

suspected narcotics. It was tested and weighed and positively identified as crack cocaine.

The parties stipulated as to the test results. Detective Bills admitted that the baggie was

not checked for fingerprints or DNA. Bills indicated that such testing often comes back

with inconclusive results.

       {¶ 5} Following deliberations, the jury found appellant guilty of possession of

cocaine. Appellant was immediately sentenced to ten months of imprisonment and an

additional 861 days based on two postrelease control violations. The court ordered the

possession sentence to be served consecutive to the postrelease control violations’

sentence. This appeal followed.

       {¶ 6} Appellant raises four assignments of error for the court’s consideration:

              I. The jury verdict was against the manifest weight of the evidence.

              II. The evidence was legally insufficient to support a conviction.




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              III. The trial court’s judicial sanction portion of the sentence is void

       due to prior sentences improperly imposing post release control.

              IV. The trial court abused its discretion in denying appellant’s

       motion to continue the trial.

       {¶ 7} Appellant’s first and second assignments of error argue that his conviction

for possession of cocaine was not supported by legally sufficient evidence and was

against the weight of the evidence. Sufficiency of the evidence and manifest weight of

the evidence are quantitatively and qualitatively different legal concepts. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Sufficiency of the evidence

is purely a question of law. Id. At its core, sufficiency of the evidence is a determination

of adequacy and a court must consider whether the evidence was sufficient to support the

conviction as a matter of law. Id. The proper analysis 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.

Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 8} In contrast, a manifest weight challenge questions whether the state has met

its burden of persuasion. Thompkins at 387. In making this determination, the court of

appeals sits as a “thirteenth juror” and, after:

              “reviewing the entire record, weighs the evidence and all reasonable

       inferences, considers the credibility of witnesses and determines whether in




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       resolving conflicts in the evidence, 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. The discretionary power to grant a new trial should

       be exercised only in the exceptional case in which the evidence weighs

       heavily against the conviction.” Id., quoting State v. Martin, 20 Ohio

       App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 9} Appellant was convicted of one count of possession of cocaine, R.C. 2925.

11(A) and (C)(4)(a), which required that the state prove that appellant knowingly

possessed a controlled substance in an amount of less than five grams. It is undisputed

that the substance recovered was cocaine, a controlled substance, and that it weighed 2.39

grams. The central issue is whether appellant possessed the cocaine.

       {¶ 10} The term “possession” is defined in R.C. 2925.01(K) 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.” Possession may be constructive or actual. Constructive possession

is shown when a person “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, 434 N.E.2d 1362 (1982), syllabus. While close proximity

to contraband is insufficient alone to prove constructive possession, it can be used as

circumstantial evidence to establish constructive possession. State v. Chapman, 73 Ohio

App.3d 132, 138, 596 N.E.2d 612 (3d Dist.1992). Constructive possession can be




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inferred from a totality of the circumstances. State v. Norman, 10th Dist. Franklin No.

03AP-298, 2003-Ohio-7038, ¶ 31.

       {¶ 11} Viewing the evidence in a light most favorable to the state, we find that

there was legally sufficient evidence to demonstrate that appellant possessed the cocaine.

When approached by police, appellant had his right hand in his coat pocket. Officers told

him to remove his hand several times and he did not comply. When securing appellant

through a take down, appellant and Officer Barwiler were spun around and appellant’s

hand flew out of his pocket. The baggie was found within two feet to the right of where

appellant was on the ground. There were no other individuals in the vicinity.

       {¶ 12} We further find that appellant’s conviction was not against the manifest

weight of the evidence. Reviewing the entire record and weighing the evidence and

considering the credibility of the witnesses, we cannot say that the jury lost its way or

created a manifest injustice. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.

Appellant’s first and second assignments of error are not well-taken.

       {¶ 13} In appellant’s third assignment of error he contends that the portion of his

sentence relating to the postrelease control violations is void due to the improper

imposition of postrelease control in the underlying criminal cases. Related to this

assignment of error, appellant filed a motion to supplement the record with the judgment

entries from the two cases forming the basis for the postrelease control violations.

       {¶ 14} In a case considering whether appellate counsel was ineffective, this court

addressed the issue of supplementing appellate records with materials from non-appealed




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cases. State v. Murray, 6th Dist. Lucas No. L-10-1059, 2014-Ohio-1898. In Murray, we

reopened an appeal for consideration of whether appellate counsel was ineffective by,

inter alia, failing to supplement the record with the sentencing hearing transcripts which

formed the basis of the argument that postrelease control was improperly imposed. See

State v. Murray, 6th Dist. Lucas No. L-10-1059, 2012-Ohio-4996 (on direct appeal, the

argument was rejected because the 2005 transcript not part of the 2009 case). We further

considered a motion to supplement the appellate record with the sentencing transcripts.

       {¶ 15} Again rejecting appellant’s arguments and motion to supplement, we found

that the appellant’s trial counsel could have raised the issue in the 2009 case because the

prison term imposed “relie[d] upon the validity of the postrelease control violation.” Id.

at ¶ 11. We determined that because it was not raised below:

              appellate counsel was unable to raise the issue on appeal because it

       would have been impossible to prove the alleged error without the 2005

       sentencing hearing transcript having been made a part of the trial court

       record and appellate counsel had no basis for seeking to include the

       transcript in the appellate record. (Citations omitted.) Id.

       {¶ 16} Likewise, in the present case, neither the 2005 nor the 2009 judgment

entries were part of the trial court record. Accordingly, we must presume the regularity

of the prior proceedings and we find appellant’s third assignment of error not well-taken.

We further find that appellant’s motion to supplement the record is not well-taken and is

denied.




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       {¶ 17} In appellant’s fourth and final assignment of error he argues that the trial

court erred when it denied a motion to continue the trial date. A trial court had broad

discretion in deciding whether to grant a continuance. State v. Galloway, 6th Dist. Lucas

No. L-00-1362, 2003-Ohio-5681, ¶ 20, citing State v. Unger, 67 Ohio St.2d 65, 67, 423

N.E.2d 1078 (1981). In evaluating the merits of a motion for continuance:

              “a court should note, inter alia: the length of the delay requested;

       whether other continuances have been requested and received; the

       inconvenience to litigants, witnesses, opposing counsel and the court;

       whether the requested delay is for legitimate reasons or whether it is

       dilatory, purposeful, or contrived; whether the defendant contributed to the

       circumstance which gives rise to the request for a continuance; and other

       relevant factors, depending on the unique facts of each case.” (Citations

       omitted). Id. at ¶ 21, quoting Unger at 67-68.

       {¶ 18} In the present case, the trial was initially continued from Thursday,

June 27, 2013, to Monday, July 1, 2013, at the request of the defendant. On the morning

of trial, defense counsel again requested a continuance to July 30, 2013, in order to meet

with new potential witnesses. Counsel had made the court aware of the issue the

preceding Friday but stated that he was unable to connect with the witnesses over the

weekend. The court denied the motion noting that counsel had the weekend to interview

witnesses and that they “should have been talked to early in the case.”




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       {¶ 19} Reviewing the record, we cannot find that the trial court abused its

discretion when it denied appellant’s motion for a continuance. Appellant’s fourth

assignment of error is not well-taken.

       {¶ 20} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair trial and the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant’s motion to supplement the record is not well-

taken and is denied. Pursuant to App.R. 24, appellant is ordered to pay the costs of this

appeal.


                                                                       Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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