[Cite as State v. Brown, 2015-Ohio-3407.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :
                                                        CASE NO. CA2014-12-257
        Plaintiff-Appellee,                       :
                                                               OPINION
                                                  :             8/24/2015
   - vs -
                                                  :

KEIWAUN MARQUEZ BROWN,                            :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2014-06-0954



Michael T. Gmoser, Butler County Prosecuting Attorney, Audra Adams, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Keiwaun M. Brown, appeals from the convictions he

received in the Butler County Court of Common Pleas after he was found guilty of

possession of cocaine and possession of heroin following a jury trial. For the reasons stated

below, we affirm.

        {¶ 2} On July 30, 2014, Brown was indicted by a Butler County Grand Jury charging

him with one count of possession of cocaine and one count of possession of heroin in
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violation of R.C. 2925.11 as well as one count of obstructing official business in violation of

R.C. 2923.31. The charges involved allegations that Brown fled from a Hamilton police

officer and attempted to discard $1,400 of cocaine and heroin under a parked vehicle. A two-

day jury trial began on October 6, 2014. After the conclusion of the evidence, the jury

returned guilty verdicts as charged on all three counts of the indictment. Thereafter, Brown

was sentenced to an 18-month prison term for possession of cocaine, an 18-month prison

term for possession of heroin, and a 90-day jail term for obstructing official business. The

sentences were ordered to be served concurrently, for an aggregate prison term of 18

months.

        {¶ 3} Brown now appeals, asserting two assignments of error.                         For ease of

discussion, the assignments of error will be addressed together.

        {¶ 4} Assignment of Error No. 1:

        {¶ 5} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT CONVICTIONS FOR

POSSESSION OF COCAINE AND HEROIN AS CHARGED IN COUNTS ONE AND TWO

OF THE INDICTMENT.

        {¶ 6} Assignment of Error No. 2:

        {¶ 7} THE GUILTY VERDICTS FOR COUNTS ONE AND TWO WERE CONTRARY

TO THE MANIFEST WEIGHT OF THE EVIDENCE.

        {¶ 8} Brown argues his possession of cocaine and possession of heroin convictions

are not supported by sufficient evidence and are against the manifest weight of the
         1
evidence. Specifically, Brown asserts the state did not prove he possessed the cocaine and

heroin. We disagree.




1. Brown does not challenge his obstructing official business conviction on appeal, and, as such, we will not
discuss whether the conviction is against the manifest weight of the evidence and supported by sufficient
evidence.

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       {¶ 9} At the outset, we note that "[t]he legal concepts of sufficiency of the evidence

and weight of the evidence are both quantitatively and qualitatively different." State v.

Thompkins, 78 Ohio St.3d 380, 386 (1987); State v. Blair, 12th Dist. Butler No. CA2014-01-

023, 2015-Ohio-818, ¶ 41. Nevertheless, although the two concepts are different, a finding

that a conviction is supported by the manifest weight of the evidence is also dispositive of the

issue of sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶

19. Therefore, "[b]ecause sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must necessarily include a finding of

sufficiency." State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.

       {¶ 10} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶

14. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

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.

Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.

       {¶ 11} However, while appellate review includes the responsibility to consider the

credibility of witnesses and weight given to the evidence, "these issues are primarily matters

for the trier of fact to decide." State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-

Ohio-5226, ¶ 81. An appellate court, therefore, will overturn a conviction due to the manifest

weight of the evidence only in extraordinary circumstances when the evidence presented at

trial weighs heavily in favor of acquittal. Id., citing Thompkins at 387.

       {¶ 12} A conviction can be based on circumstantial evidence alone. State v. Shannon,

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191 Ohio App.3d 8, 2010-Ohio-6079, ¶ 10 (12th Dist.). Circumstantial evidence is proof of

certain facts and circumstances in a given case, from which the jury may infer other,

connected facts, which usually and reasonably follow according to the common experience of

mankind. State v. Stringer, 12th Dist. Butler No. CA2012-04-095 2013-Ohio-988, ¶ 31.

Circumstantial evidence and direct evidence inherently possess the same probative value.

Id. In some cases, certain facts can only be established by circumstantial evidence, and a

conviction based thereon is no less sound than one based on direct evidence. Shannon at ¶

10. In fact, circumstantial evidence may be more certain, satisfying, and persuasive than

direct evidence. State v. Ballew, 76 Ohio St.3d 244, 249 (1996).

       {¶ 13} Brown was convicted of possession of cocaine and possession of heroin in

violation of R.C. 2925.11(A), which provides, "[n]o person shall knowingly obtain, possess, or

use a controlled substance or a controlled substance analog." Possession is defined 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). Possession may be actual or constructive.

Constructive possession exists when one is conscious of the presence of the object and able

to exercise dominion and control over it, even if it is not within one's immediate physical

possession. State v. Gaefe, 12th Dist. Clinton No. CA2001-11-043, 2002-Ohio-4995, ¶ 9.

Dominion and control can be proven by circumstantial evidence alone. Stringer at ¶ 32.

       {¶ 14} After a thorough review of the record, we find Brown's convictions for

possession of cocaine and possession of heroin were not against the manifest weight of the

evidence. At trial, Hamilton Police Officer Casey Johnson testified that while on patrol in his

police cruiser he observed Brown walking with a cigar and a slushie. Officer Johnson knew

there were warrants pending for Brown's arrest so he parked and exited his cruiser and

called out Brown's name. However, instead of going to Officer Johnson, Brown walked away

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from the officer and stood on the other side of a parked car. When Officer Johnson followed

Brown to the car and took out his Taser, Brown crouched down and moved in the opposite

direction to ensure that the vehicle was always in between the two men. Officer Johnson

explained that during this time, Brown went to the front of the vehicle, bent down, and placed

something under the engine. After he discarded the item under the car, Brown fled to a

nearby field. After fleeing 20 yards, Brown laid down on the ground and was arrested.

       {¶ 15} While Brown was being arrested, two other Hamilton Police Officers, Officer

Brian Gleason and Officer Chris Gibson, arrived at the scene. Officer Johnson stated that he

and Officer Gleason searched the area around the parked vehicle and found a slushie and

cigar on the ground by the driver's side. A cigar pack was found in the front of the vehicle, in

the exact spot where Officer Johnson saw Brown bend down and place something under the

vehicle. Inside the cigar pack were baggies of heroin and cocaine valued at approximately

$1,400.

       {¶ 16} Brown denies possession of the drugs and argues his behavior in hiding behind

the vehicle and fleeing to the field is explained by his fear of being tased. The evidence at

trial did establish that the incident occurred on a public street, in a high crime area, and the

vehicle contained occupants who had a history of dealings with law enforcement. However,

Officer Johnson stated no one came near the car during the exchange with Brown and the

occupants of the vehicle complied with his instructions to remain still and did not throw

anything out of the windows. Further, Brown admitted that due to his previous dealings with

law enforcement, he knew he would be searched incident to an arrest. As the trier of fact,

the jury is required to resolve factual questions and evaluate witness credibility and "a

conviction is not against the manifest weight of the evidence simply because the trier of fact

believed the prosecution testimony." State v. Brown, 12th Dist. Butler No. CA2013-03-043,

2014-Ohio-1317, ¶ 20. After reviewing the record, we cannot say that the jury clearly lost its

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way and created such a manifest miscarriage of justice that Brown's convictions must be

reversed. See State v. Botos, 12th Dist. Butler No. CA2004-06-145, 2005-Ohio-3504, ¶ 11-

15 (constructive possession where defendant fled, made furtive movements, and stopped in

location where drugs later found).

       {¶ 17} In light of the foregoing, having found Brown's convictions for possession of

heroin and possession of cocaine were not against the manifest weight of the evidence, we

necessarily conclude the state presented sufficient evidence to support the jury's findings of

guilt. Accordingly, Brown's first and second assignments of error are overruled.

       {¶ 18} Judgment affirmed.


       PIPER, P.J., and RINGLAND, J., concur.




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