[Cite as State v. Reis, 2012-Ohio-2482.]


STATE OF OHIO                      )                 IN THE COURT OF APPEALS
                                   )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                        C.A. No.      26237

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
BRITTANY N. REIS                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 11 03 0700

                                  DECISION AND JOURNAL ENTRY

Dated: June 6, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Defendant-Appellant, Brittany Reis, appeals from her conviction in the Summit

County Court of Common Pleas. This Court affirms.

                                                 I

        {¶2}     Reis lost control of her vehicle on the night of February 27, 2011, and collided

with a support beam for a sign near an exit ramp on Route 8 South. Officers from the Stow

Police Department responded to the scene and discovered that Reis had a suspended license. The

officers arrested Reis for driving under suspension and inventoried her car for purposes of

towing it. The police discovered one small, round blue pill on the floor of the car between the

driver’s side seat and door. Reis claimed that she had never seen the pill before. The pill tested

positive for MDMA, a component of ecstasy.

        {¶3}     A grand jury indicted Reis on three charges: (1) aggravated possession of drugs,

in violation of R.C. 2925.11(A)(C)(1); (2) driving under suspension, in violation of R.C.
                                                2


4510.11; and (3) failure to control, in violation of R.C. 4511.202. Reis pleaded guilty to driving

under suspension and failure to control. A bench trial then took place on the charge for the

aggravated possession of drugs. The trial court found Reis guilty of aggravated possession and

sentenced her to two years of community control.

       {¶4}    Reis now appeals from her aggravated possession conviction and raises two

assignments of error for our review.

                                                II

                                Assignment of Error Number One

       THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE
       STATE FAILED TO ESTABLISH ON THE RECORED (sic) SUFFICIENT
       EVIDENCE TO SUPPORT AN AGGRAVATED DRUG POSSESSION IN
       VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH
       AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS
       1, 10 & 16 OF THE OHIO CONSTITUTION.

       {¶5}    In her first assignment of error, Reis argues that her conviction for aggravated

possession is based on insufficient evidence.        She argues that there was no evidence she

knowingly possessed the pill the police found in her car.

       {¶6}    In order to determine whether the evidence before the trial court was sufficient to

sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. 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.

Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.
                                                 3


       {¶7}    “No person shall knowingly obtain, possess, or use a controlled substance.” R.C.

2925.11(A). “A person acts knowingly, regardless of his purpose, when he is aware that his

conduct will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when he is aware that such circumstances probably exist.” R.C.

2901.22(B). “Possession ‘may be constructive as well as actual. Constructive 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. Kendall, 9th Dist. No.

25721, 2012-Ohio-1172, ¶ 14, quoting State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus.

“[T]he crucial issue is not whether the accused had actual physical contact with the article

concerned, but whether the accused was capable of exercising dominion [and] control over it.”

State v. Graves, 9th Dist. No. 08CA009397, 2011-Ohio-5997, ¶ 15, quoting State v. Ruby, 149

Ohio App.3d 541, 2002-Ohio-5381, ¶ 30 (2d Dist.). “[R]eady availability of the item and close

proximity to it support a finding of constructive possession.” State v. Lamb, 9th Dist. No. 23418,

2007-Ohio-5107, ¶ 12.         Moreover, “[c]ircumstantial evidence is sufficient to support the

elements of constructive possession.” State v. Williams, 9th Dist. No. 25286, 2011-Ohio-4488, ¶

7.

       {¶8}    Officer Robert Frisina testified that he saw Reis’ vehicle stopped near an exit

ramp on Route 8 and stopped to investigate. He informed dispatch of the accident, and dispatch

informed him that Reis had a suspended driver’s license. Officer Frisina spoke with Reis and

asked for her license. In response, she produced a credit card. Reis then admitted that her

license had been suspended, but claimed to have driving privileges. Reis was not able to produce

any evidence that she had driving privileges, and Officer Frisina determined that he would have

to place Reis under arrest.
                                                4


       {¶9}    Officer Brian Haddix testified that he responded to the scene to aid with an

inventory search once Officer Frisina determined that Reis had a suspended license and would be

placed under arrest. Officer Haddix testified that Reis did not want him to go through her

belongings. She also told Officer Haddix that items from her purse were all over the vehicle

because she had dumped her purse out in an attempt to find her AAA card. Officer Haddix

observed items on both seats as well as on the center console. He also found a small, round blue

pill with the imprint of a puma on it. Officer Haddix testified that he saw the pill on the floor

between the driver’s seat and door. He described the pill as being “very visible” and within

arm’s length of the driver’s seat. He also found several empty plastic baggies on the floor of the

car that he believed contained marijuana residue. Officer Haddix questioned Reis about both the

pill and the marijuana. Reis admitted that she occasionally used marijuana, but denied having

any in the car. She also denied having any knowledge of the blue pill.

       {¶10} Reis argues that her aggravated possession conviction is based on insufficient

evidence because the State failed to prove that she constructively possessed the blue pill. She

admits that she owned the vehicle at the time the police searched it, but argues that there was no

evidence she knew the pill was in the car. According to Reis, the pill could have been in the car

for any length of time without her knowledge and then shifted into position between the driver’s

seat and door when she collided with the support beam on the exit ramp.

       {¶11} Viewing the evidence in a light most favorable to the State, we must conclude that

the State presented evidence from which a rational trier of fact could conclude that Reis

constructively possessed the blue pill. Reis owned the car the police searched, and the pill was

within arm’s length of her seat. Accordingly, the pill was readily available to her and in close

proximity to her seat when the police discovered it. See Lamb, 2007-Ohio-5107, at ¶ 12. Officer
                                                  5


Haddix also described the pill as being “very visible.”             As such, the State produced

circumstantial evidence that Reis was capable of exercising dominion and control over the pill.

See Graves, 2011-Ohio-5997, at ¶ 15. To the extent Reis argues that someone else could have

left the pill and it could have dislodged itself as a result of the accident, those arguments sound in

weight, not sufficiency. Reis’ argument that the State failed to present sufficient evidence of

constructive possession lacks merit. Her first assignment of error is overruled.

                                Assignment of Error Number Two

       MS. REIS’ CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE POSSESSION (sic) IN VIOLATION OF THE DUE PROCESS
       CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND
       ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

       {¶12} In her second assignment of error, Reis argues that her aggravated possession

conviction is against the manifest weight of the evidence. We disagree.

       {¶13} In determining whether a conviction is against the manifest weight of the

evidence an appellate court:

       must review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge

indicates that a greater amount of credible evidence supports one side of the issue than supports

the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis

that the conviction was against the manifest weight of the evidence, the appellate court sits as the

“thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony. Id.

Therefore, this Court’s “discretionary power to grant a new trial should be exercised only in the
                                                   6


exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin,

20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.

       {¶14} As previously noted, Reis argues that the blue pill could have shifted positions

when she had her car accident. She argues that her conviction is against the manifest weight of

the evidence because other people used her car and her possession of the pill cannot be inferred

merely from her ownership of the car. Reis testified that she never saw the blue pill before

Officer Haddix showed it to her. She further testified that she “ha[d] an idea” who the pill might

belong to, but that the person would not be willing to confess to it.

       {¶15} Whether Reis knew about the pill was a matter of credibility for the trial court to

consider. Officer Haddix testified that Reis did not want him to search her belongings and that,

in addition to the blue pill, he found baggies associated with marijuana in Reis’ car. Reis also

admitted that she emptied the contents of her purse in her vehicle, so it is equally as plausible

that the pill fell from her purse as it is that the pill shifted positions during the accident. Further,

Reis also admitted to marijuana use and was less than forthcoming about her license suspension,

as she claimed to have driving privileges when she did not actually have them. Based on our

review of the record, we cannot conclude that this is the exceptional case where the trier of fact

lost its way by choosing to believe that Reis knowingly possessed the pill by way of constructive

possession. Reis’ second assignment of error is overruled.

                                                  III

       {¶16} Reis’ assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                                   Judgment affirmed.
                                                 7




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



MOORE, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

DAWN M. KING, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
