[Cite as State v. Snyder, 2011-Ohio-5510.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



THE STATE OF OHIO                                  JUDGES:
                                                   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Julie A. Edwards, J.
v.
                                                   Case No. 11 CA 33
RICKEY D. SNYDER JR.

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 10 CR 229


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         October 27, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KENNETH OSWALT                                 ANDREW T. SANDERSON
PROSECUTING ATTORNEY                           BURKETT & SANDERSON, INC.
BRIAN T. WALTZ                                 21 West Church Street
ASSISTANT PROSECUTOR                           Suite 201
20 South Second Street, 4th Floor              Newark, Ohio 43055
Newark, Ohio 43055
Licking County, Case No. 11 CA 33                                                      2

Wise, J.

       {¶ 1} Appellant Ricky D. Snyder, Jr. appeals his conviction, following a bench

trial in the Court of Common Pleas, Licking County, on one count of possession of

methamphetamine, one count of tampering with evidence, and one count of possession

of marihuana. The relevant facts leading to this appeal are as follows.

       {¶ 2} On May 4, 2010, Newark police officers were dispatched to a residence on

West National Drive to respond to a domestic violence call, with a weapon reported.

Detective Clint Eskins arrived first. He initially observed appellant and his purported

girlfriend, Sarah Glass, standing outside a GMC Jimmy truck in the driveway. As Eskins

pulled up, appellant commenced walking away from the GMC, toward a nearby garage.

Eskins ordered appellant to return to the driveway area. Appellant ultimately complied

with the officer’s instructions.

       {¶ 3} A second officer, Arthur Minton, arrived on the scene at about this point in

time. Officer Eskins was thus able to go over toward the garage and check the area.

When he did, he discovered a plastic bag, appearing to be freshly placed on the ground,

containing a white crystalline substance suspected to be methamphetamine. Officer

Minton then placed appellant under arrest. The GMC, which appellant admitted to have

been driving, was thereupon searched pursuant to police impound policy. In addition,

another bag with a lesser amount of suspicious white crystals, suspected to be

methamphetamine, was found inside the GMC. A small quantity of marihuana was also

discovered in the GMC. Appellant, who was observed with trembling hands and acting

nervous, was found to be carrying cash in the amount of $869.00, in denominations of
Licking County, Case No. 11 CA 33                                                        3


twenty-dollar bills and less. However, no fingerprints or DNA traces from the

methamphetamine bags were ever connected to appellant.

       {¶ 4} On May 14, 2010, the Licking County Grand Jury indicted appellant on

one count possession of methamphetamine (felony-2), one count of tampering with

evidence (felony-3), and one count of possession of marihuana (minor misdemeanor).

       {¶ 5} After failing to appear for his initial arraignment, appellant appeared before

the trial court on June 1, 2010 and entered a plea of not guilty to all counts.

       {¶ 6} A jury trial was ultimately scheduled for March 1, 2011. Prior to opening

arguments, appellant waived his right to a jury and asked for a bench trial. The matter

was then heard by the court. At the close of the State’s case, appellant moved for an

acquittal, which the trial court denied.

       {¶ 7} After hearing all the evidence, the trial court found appellant guilty on all

three counts. Appellant was sentenced to four years in prison for possession of

methamphetamine and two years for tampering with evidence, for a total of six years.

No incarceration was ordered on the minor misdemeanor of possession of marihuana.

       {¶ 8} On March 24, 2011, appellant filed a notice of appeal. He herein raises the

following three Assignments of Error:

       {¶ 9} “I.     THE CONVICTION OF THE DEFENDANT-APPELLANT WAS

OBTAINED WITHOUT SUFFICIENT EVIDENCE BEING PRESENTED TO ESTABLISH

EACH AND EVERY ELEMENT OF THE OFFENSE OF AGGRAVATED POSSESSION

OF DRUGS.

       {¶ 10} “II.   THE CONVICTION OF THE DEFENDANT-APPELLANT WAS

OBTAINED WITHOUT SUFFICIENT EVIDENCE BEING PRESENTED TO ESTABLISH
Licking County, Case No. 11 CA 33                                                         4


THAT THE DEFENDANT-APPELLANT POSSESED ILLEGAL NARCOTICS IN THE

QUANTITY ALLEGED BY THE INDICTMENT.

       {¶ 11} “III.   THE CONVICTION OF THE DEFENDANT-APPELLANT WAS

OBTAINED WITHOUT SUFFICIENT EVIDENCE BEING PRESENTED TO ESTABLISH

EACH AND EVERY ELEMENT OF THE OFFENSE OF TAMPERING WITH EVIDENCE

AS ALLEGED IN THE INDICTMENT.”

                                         I., II., III.

       {¶ 12} In his First, Second, and Third Assignments of Error, appellant challenges

various aspects of his convictions on a claim of insufficient evidence.1

                                   Standard of Review

       {¶ 13} In reviewing a claim of insufficiency of the evidence, “[t]he 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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus.

                      Possession of 41.6 Grams of Methamphetamine

       {¶ 14} Appellant first challenges his conviction for possession as to the 41.6

grams of methamphetamine found by law enforcement officers in the yard near the

garage.

       {¶ 15} R.C. 2925.11(A) states: “(A) No person shall knowingly obtain, possess, or

use a controlled substance.”




1
   We note appellant has not specifically herein challenged the identity of the illegal
drugs at issue.
Licking County, Case No. 11 CA 33                                                       5


      {¶ 16} In order to establish constructive possession of illegal drugs, the evidence

must prove that the defendant was able to exercise dominion and control over the

contraband. See, e.g., State v. Carrothers, Tuscarawas App.No. 2004 AP 10 0067,

2005-Ohio-4495, ¶ 7, citing State v. Wolery (1976), 46 Ohio St.2d 316, 332, 348 N.E.2d

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

readily usable drugs may show constructive possession. Id., citing State v. Barr (1993),

86 Ohio App.3d 227, 235, 620 N.E.2d 242, 247-248. It is well-established that

circumstantial evidence has the same probative value as direct evidence. See, e.g.,

State v. Pryor, Stark App.No. 2007CA00166, 2008-Ohio-1249, ¶ 34, citing Jenks, supra.

      {¶ 17} In the case sub judice, the evidence demonstrated that appellant abruptly

began walking toward the garage as the first police officer, Detective Eskins, arrived. He

then stopped at the corner of the garage, paused, and turned back around. Officer

Minton thereafter observed appellant to be nervous and trembling. A bag of

methamphetamine was soon discovered at the spot near the garage where appellant

had stopped and turned around. In addition, a non-police witness observed appellant

suspiciously drop something to the ground near the corner of the garage. See Garrett

Hylton testimony, Tr. at 172. Appellant admitted to police that other drugs found in the

GMC belonged to him. Appellant was also discovered with several hundred dollars in

denominations of twenty-dollar bills and less, even though he told the officers at the

scene that he was unemployed.

      {¶ 18} Based on the foregoing direct and circumstantial evidence, viewed in a

light most favorable to the prosecution, the finder of fact could have reasonably

concluded that appellant was at least in constructive possession of the 41.6 gram bag of
Licking County, Case No. 11 CA 33                                                              6


methamphetamine; thus, we hold the evidence was sufficient as a matter of law for this

portion of the drug possession conviction at issue.

                     Possession of 9.11 Grams of Methamphetamine

       {¶ 19} Appellant next challenges his conviction for possession as to the 9.11

grams of methamphetamine found by law enforcement officers in a bag in the vehicle’s

ashtray.

       {¶ 20} It is undisputed that appellant identified the methamphetamine inside the

vehicle as his. Appellant presently contends, however, that an inference could be

properly drawn that he was simply trying to protect his girlfriend, Ms. Glass, by making

such a claim. He further points out that the officers arrested both appellant and Glass,

suggesting that there was an uncertainty about possession of this portion of the seized

drugs from the outset of the case.

       {¶ 21} Again, however, upon review, we conclude the finder of fact could have

reasonably concluded that appellant was at least in constructive possession of the 9.11

gram quantity of methamphetamine in the ashtray; thus, we hold the evidence was

sufficient for this portion of the drug possession conviction at issue.

                              Evidence Tampering Conviction

       {¶ 22} Appellant finally challenges his conviction for tampering with evidence.

       {¶ 23} R.C. 2921.12(A)(1) states: “No person, knowing that an official proceeding

or investigation is in progress, or is about to be or likely to be instituted, shall *** [a]lter,

destroy, conceal, or remove any record, document, or thing, with purpose to impair its

value or availability as evidence in such proceeding or investigation.”
Licking County, Case No. 11 CA 33                                                          7


       {¶ 24} Knowledge that a criminal investigation is under way or is imminent is

based upon a reasonable person standard. State v. Mann, Clermont App.No. CA2006-

05-035, 2007-Ohio-1555, ¶11, citing State v. Edwards, Erie App. No. E-01-010, 2003-

Ohio-6372, ¶ 69.

       {¶ 25} In his brief, appellant first maintains that “there is simply no evidence that

tends to establish that Mr. Snyder knew that an investigation was underway or about to

be commenced into his possession of a controlled substance.” Appellant’s Brief at 17-

18, emphasis added. We find this claim unpersuasive, as the statute does not require a

showing of knowledge by the accused as to a particular focus of an investigation. In the

case sub judice, a rational trier of fact could have found that a police officer in a cruiser

had arrived on the scene on a domestic violence call and was directing appellant to

cease leaving the area when the bag of drugs was dropped. Thus, the trier of fact could

have determined beyond a reasonable doubt that a reasonable person would have

been aware of a commenced investigation.

       {¶ 26} Appellant also maintains that the State failed to prove that appellant

altered, destroyed, concealed, or removed the bag of drugs, and that he did so with

purpose to impair the value or availability of the drugs as evidence. However, the record

indicates that appellant moved away from the GMC toward a nearby structure, next to

which were some bushes, in which vicinity he “tossed” the bag of methamphetamine.

Viewed in a light most favorable to the prosecution, we hold there was sufficient

evidence presented of appellant’s concealment of the contraband evidence with

purpose to impair its availability in a potential drug case against him.
Licking County, Case No. 11 CA 33                                                     8


       {¶ 27} Based on the foregoing, appellant’s First, Second, and Third Assignments

of Error are overruled.

       {¶ 28} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Licking County, Ohio, is affirmed.


By: Wise, J.

Farmer, P. J., and

Edwards, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES
Licking County, Case No. 11 CA 33                                             9


            IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




THE STATE OF OHIO                          :
                                           :
      Plaintiff-Appellee                   :
                                           :
V                                          :         JUDGMENT ENTRY
                                           :
RICKEY D. SNYDER, JR.                      :
                                           :
      Defendant-Appellant                  :         Case No. 11 CA 33




      For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.

      Costs assessed to appellant.




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                                                              JUDGES
