[Cite as State v. Eden, 2020-Ohio-2900.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 2019 CA 00031
BRYAN E. EDEN

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2018 CR 00782


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        May 11, 2020



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

R. KYLE WITT                                    THOMAS R. ELWING
PROSECUTING ATTORNEY                            60 West Columbus Street
BRIAN T. WALTZ                                  Pickerington, Ohio 43147
ASSISTANT PROSECUTOR
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 2019 CA 00031                                                  2


Wise, J.

       {¶1}    Defendant-Appellant Bryan E. Eden appeals his conviction on aggravated

possession of drugs, with a firearm specification, having weapons under disability, and

carrying a concealed weapon entered in the Fairfield County Court of Common Pleas

following a jury trial.

       {¶2}    Plaintiff-Appellee is the State of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶3}    The relevant facts and procedural history are as follows:

       {¶4}    On December 31, 2018, at approximately 12:15 a.m., officers with the

Lancaster Police Department were dispatched to 632 N. Broad St., Lancaster, Ohio, on

a complaint of a suspicious vehicle behind a residence. (T. at 51-52). Dispatch also

provided information that earlier in the day other officers had responded to a possible

breaking and entering at the same residence. (T. at 52). Officer Andrew T. Bennett was

the first officer to arrive on the scene. (T. at 53). Officer Roxx Williams arrived shortly

thereafter. (T. at 179).

       {¶5}    Upon arrival, the police found a vehicle matching the description from

dispatch at that location with Appellant, Bryan E. Eden, as the driver. (T. at 53-54). There

were two other people in the car and another person on the steps of the residence at that

time. (T. at 53-55). The officers would later identify the front seat passenger as Weston

Predmore, Hilary Ewing as the backseat passenger, and Shaleena Shields as the female

standing outside the vehicle (T. at 54-55)

       {¶6}    A search of the front driver's area took place after the occupants of the

vehicle were removed. (T. at 59-60). On the driver's floorboard, approximately half-way
Fairfield County, Case No. 2019 CA 00031                                                    3


underneath the seat, but still visible from outside the car window, police found a blue

plastic container. (T. at 60). This box was essentially underneath Appellant's knees and

near his feet. (T. at 31, 123). Inside that box was a glass vial with over 4 grams of

methamphetamine in it as well as various items of drug paraphernalia, including syringes.

(T. at 62). This box had a translucent top that allowed the contents inside to be visible

without having to open the container. (T. at 78).

       {¶7}   Appellant denied any knowledge of the drugs. (T. at 68). When asked,

Appellant did not have any explanation for how he did not notice these drugs under his

feet. (T. at 68-69). ). Appellant also stated there "wasn't supposed to be anything in the

vehicle." (T. at 121). Appellant told the police that the only thing that belonged to him was

his book bag and its contents, which he said contained his clothing and a laptop computer.

(T. at 69, 123). At that point, Appellant was made aware that the police were going to be

searching his book bag. (T. at 69). Appellant then changed his story and told the police

that nothing in the car belonged to him. (T. at 69, 127). When confronted with the fact that

he already told police that the book bag was his, Appellant stated "I lied." (T. at 127).

Appellant was then asked by police if he was aware of whether his roommate, being the

owner of the vehicle, was into drugs. (T. at 123). Appellant replied "I am not at liberty to

say what he is or isn't into." He then added "May I see or not see certain things, perhaps."

       {¶8}   The police then searched Appellant's book bag, which was stuffed

completely full. (T. at 69-71). In one of the outside zipped up pockets of the bag, the police

found a semi-automatic handgun magazine. (T. at 69, 89). After removing a number of

personal items and clothing, a 9mm semi-automatic handgun was found at the very

bottom of the bag. (T. at 70). Also found in the bag were syringes and brass knuckles with
Fairfield County, Case No. 2019 CA 00031                                                       4


a built-in knife that flipped out of the knuckles. (T. at 71). Prior to the search of Appellant's

bag, some of the occupants of the car were unloading the car. However, before they were

able to do that completely, the police ordered them to put Appellant's bag back in the car.

(T. at 117).

       {¶9}    By indictment filed on January 10, 2019, Appellant, Bryan E. Eden, was

charged with one count of aggravated possession of drugs, a felony of the third degree,

in violation of R.C. §2925.11(A) and R.C. 2925.11(C)(1)(b), with an associated firearm

specification under R.C. §2941.141(A) for having a firearm under his possession or

control while committing the offense; one count of having weapons under disability, a

felony of the third-degree, in violation of R.C. §2923.13(A)(3) and §2923.13(B); one count

of carrying a concealed weapon, a felony of the third-degree, in violation of R.C.

§2923.12(A)(1) and R.C. §2923.12(F)(1), and one count of improperly handling firearms

in a motor vehicle, a felony of the fourth-degree, in violation of R.C. §2923.16(B) and

§2923.16(I).

       {¶10} On May 14, 2019, this matter proceeded to jury trial.

       {¶11} At trial, Appellant called two witnesses: Cheyenne Ogg and Dustin Woods.

Cheyenne Ogg testified that on December 30, 2018, he saw Russell Bell hand his EBT

card to Shaleena Shields while they were together in the same car. (T. at 240). He also

testified that it was possible that Russell Bell had sold that EBT card after that incident,

and that he did not have direct knowledge of what happened during the incident on the

31st. (T. at 242). He also testified that he looked at all the Appellant's discovery before

deciding what his statement was going to be. (T. at 243). Ogg was also currently in prison

for burglary. (T. at 243).
Fairfield County, Case No. 2019 CA 00031                                                  5


       {¶12} Dustin Brown testified that he was the owner of the car involved in this

incident. (T. at 252-253). He stated that when he lent his car out, there was no blue case

in it, nor were there any guns in the car. (T. at 256-257).

       {¶13} At the close of the state's presentation of evidence, Appellant moved for

acquittal pursuant to Crim.R. 29 on the charge of improperly handling firearms in a motor

vehicle. The trial court granted the motion, and this charge was dismissed.

       {¶14} On May 16, 2019, following the conclusion of the evidence and after

deliberations, the jury found Appellant guilty of all remaining charges and specifications.

       {¶15} At a sentencing hearing on May 23, 2019, the trial court sentenced

Appellant to eighteen (18) months on the count of aggravated possession of drugs, to

run consecutive to the one (1) year sentence for the firearm specification; eighteen (18)

months on the count of having weapons under disability, to run consecutive to the

aggravated possession offense, but concurrent to carrying a concealed weapon; and

eighteen (18) months on the carrying a concealed weapon charge, which was ordered to

run consecutive to the aggravated possession offense, but concurrent to having weapons

under disability, for an aggregate sentence of four (4) years.

        {¶16} Appellant now appeals, raising the following assignments of error for review:

                               ASSIGNMENTS OF ERROR

       {¶17} “I. THE MANIFEST WEIGHT OF THE EVIDENCE DID NOT SUPPORT

APPELLANT'S CONVICTIONS FOR AGGRAVATED POSSESSION OF DRUGS WITH

A FIREARM SPECIFICATION, HAVING WEAPONS UNDER DISABILITY, AND

CARRYING A CONCEALED WEAPON.
Fairfield County, Case No. 2019 CA 00031                                                   6


       {¶18} “II.    INSUFFICIENT        EVIDENCE         SUPPORTED          APPELLANT'S

CONVICTIONS FOR AGGRAVATED POSSESSION OF DRUGS WITH A FIREARM

SPECIFICATION, HAVING WEAPONS UNDER DISABILITY, AND CARRYING A

CONCEALED WEAPON.”

                                               I., II.

       {¶19} In both assignments of error, Appellant argues that the evidence introduced

at trial failed to support the state's theory of constructive possession with respect to the

methamphetamine, the 9mm handgun, and the brass knuckles. We shall therefore

address Appellant’s assignments of error together.

       {¶20} In Appellant’s first and second assignments of error he argues that his

convictions are against the manifest weight and sufficiency of the evidence. We disagree.

       {¶21} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “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.”

Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶22} On review for manifest weight, a reviewing court is to examine 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 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. Martin, 20 Ohio App.3d 172, 175, 485
Fairfield County, Case No. 2019 CA 00031                                                   7


N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d

541 (1997). The granting of a new trial “should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction.” Martin at 175.

       {¶23} At trial, the parties stipulated that the suspected methamphetamine was in

fact methamphetamine in the amount of 4.08 grams. (T. at 205). The parties also

stipulated that Appellant had a prior conviction for an offense of violence, that the handgun

was a fully functional firearm, and that Appellant had a prior conviction for a felony drug

possession offense (which formed the basis for the offense of having weapons under

disability as a felony of the third-degree).

       {¶24} Here, Appellant’s principal contention is that the evidence introduced at trial

failed to support the state's theory of constructive possession with respect to the

methamphetamine, the 9mm handgun, and the brass knuckles.

       {¶25} 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.”

       {¶26} 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).

       {¶27} 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.
Fairfield County, Case No. 2019 CA 00031                                                         8


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.

       {¶28} 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.

       {¶29} 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), 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).

       {¶30} “ ‘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 jury is that it weigh all of
Fairfield County, Case No. 2019 CA 00031                                                  9


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. While inferences

cannot be based on inferences, a number of conclusions can result from the same set of

facts. State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293 (1990), citing Hurt v. Charles

J. Rogers Transp. Co., 164 Ohio St. 329, 331, 130 N.E.2d 820 (1955). Moreover, a series

of facts and circumstances can be employed by a jury as the basis for its ultimate

conclusions in a case. Lott, 51 Ohio St.3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio

St. at 331, 130 N.E.2d 820.

       {¶31} Upon our review of the record, we find the State presented sufficient

evidence that Appellant exercised dominion and control over the methamphetamine and

the handgun.

                                       Methamphetamine

       {¶32} Appellant herein argues that evidence was presented that the crayon box

was likely the property of another. The vehicle containing the crayon box was owned by

a third-party, Dustin Brown, and Appellant was merely borrowing the vehicle. Also, the

crayon box contained an EBT card belonging to another third party, Russell Bell.

       {¶33} Upon review, we find that the State presented sufficient evidence of

Appellant’s possession of the box and the drugs contained therein.

       {¶34} Appellant exercised constructive possession over drugs discovered in the

vehicle because, in part, he was found in the car with the drugs. The methamphetamine

in this case was found in a box with a clear cover under Appellant’s legs in a vehicle being

driven by Appellant. State v. Townsend, 2d Dist. Montgomery No. 18670, 2001 WL

959186, (Aug. 24, 2001) (“Although mere presence in the vicinity of drugs does not prove
Fairfield County, Case No. 2019 CA 00031                                                  10


dominion and control, readily accessible drugs in close proximity to an accused may

constitute sufficient circumstantial evidence to support a finding of constructive

possession.”), citing State v. Scalf, 126 Ohio App.3d 614, 620, 710 N.E.2d 1206 (8th

Dist.1998). The box containing the drugs was in plain sight and located where only

Appellant could reach them. State v. Williams, 190 Ohio App.3d 645, 2010-Ohio-5259,

943 N.E.2d 1049, ¶ 15 (10th Dist.) (“The cocaine and materials used to process crack

cocaine were in plain sight once officers entered the room.”); State v. Rampey, 5th Dist.

No. 2004 CA 00102, 2006-Ohio-1383, 2006 WL 747603, ¶ 51 (holding that evidence is

sufficient to prove knowing possession of cocaine where cocaine was found “in plain sight

in [defendant's] truck after he was arrested getting out of his truck”).

        {¶35} Additionally, syringes were also found in the book bag belonging to

Appellant, which supports Appellant’s possession of the drugs.

        {¶36} We conclude that a rational trier of fact could conclude beyond a reasonable

doubt that Appellant constructively possessed the methamphetamine. Consequently,

Appellant's possession of methamphetamine conviction is based on sufficient evidence.

                                          9mm handgun

        {¶37} While Appellant argues that the presence of a woman’s makeup bag and

another person’s EBT card inside the book bag put into question his ownership of the

bag, we find that the State presented sufficient evidence of Appellant’s ownership of

same.

        {¶38} The handgun, along with an ammunition magazine, were found in a book

bag in the vehicle driven by Appellant. Appellant initially told the police that the book bag

belonged to him, and that it contained his clothes and his laptop computer. Upon
Fairfield County, Case No. 2019 CA 00031                                                  11


searching the book bag, the police found Appellant’s clothes and laptop computer as

stated by Appellant. The police also found the 9mm handgun at the very bottom of the

backpack underneath all of the other contents.

       {¶39} We therefore find Appellant’s convictions for the firearm specification,

having weapons under disability, and carrying a concealed weapon were based on

sufficient evidence.

       {¶40} Here, 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

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).
Fairfield County, Case No. 2019 CA 00031                                                 12


       {¶41} The jury heard the testimony of all of the witnesses which were subjected

to cross-examination. Thus, a rational basis exists in the record for the jury’s decision.

       {¶42} Finally, 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. Based

upon the foregoing and the entire record in this matter, we find Wilson’s convictions are

not against the sufficiency or the manifest weight of the evidence. To the contrary, the

jury appears to have fairly and impartially decided the matters before them. The jury heard

the witnesses, evaluated the evidence, and was convinced of Appellant’s guilt. The jury

neither lost its way nor created a miscarriage of justice in convicting Appellant.

       {¶43} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes for which Appellant was convicted.

       {¶44} Appellant's assignments of error are overruled.

       {¶45} For the foregoing reasons, the judgment of the Court of Common Pleas of

Fairfield County, Ohio, is affirmed.

By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.



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