[Cite as State v. Sexton, 2020-Ohio-153.]




                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




 STATE OF OHIO,                                   :

        Appellee,                                 :     CASE NO. CA2018-08-100

                                                  :             OPINION
     - vs -                                                      1/21/2020
                                                  :

 STEVEN SEXTON,                                   :

        Appellant.                                :




      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 17CR33604


David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee

Craig A. Newburger, 477 Forest Drive, South Lebanon, Ohio 45065, for appellant



        S. POWELL, J.

        {¶ 1} Appellant, Steven Sexton, appeals his conviction in the Warren County Court

of Common Pleas for one count of aggravated possession of drugs. For the reasons

outlined below, we affirm.

        {¶ 2} Sexton was sentenced to 12 months in prison after a jury found him guilty of

one count of fifth-degree felony aggravated possession of drugs. The jury returned its guilty
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verdict based upon testimony that the police found Sexton in close proximity to a crumpled

up coffee filter that contained newly manufactured methamphetamine. This discovery

occurred after the police were dispatched to investigate a 9-1-1 call that reported Sexton

had been involved in an assault. The jury heard testimony that this assault occurred at a

house where Sexton had earlier in the day been making methamphetamine. The jury also

heard testimony that Sexton had fled from that house after learning that a 9-1-1 call had

been made.

       {¶ 3} Sexton now appeals his conviction, raising three assignments of error for

review.

       {¶ 4} Assignment of Error No. 1:

       {¶ 5} APPELLANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW

WAS DENIED BECAUSE THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY

AS TO CONSTRUCTIVE POSSESSION.

       {¶ 6} In his first assignment of error, Sexton argues the trial court erred by providing

the jury with an incomplete and improper jury instruction for constructive possession. We

disagree.

       {¶ 7} Jury instructions are matters that are left to the sound discretion of the trial

court. State v. Brannon, 12th Dist. Clinton No. CA2014-09-012, 2015-Ohio-1488, ¶ 20.

However, although left to the trial court's sound discretion, the trial court must nevertheless

"fully and completely give jury instructions which are relevant and necessary for the jury to

weigh the evidence and discharge its duty as the fact-finder." State v. Davis, 12th Dist.

Madison No. CA2015-05-015, 2016-Ohio-1166, ¶ 27, citing State v. Comen, 50 Ohio St.3d

206 (1990), paragraph two of the syllabus. "[T]his court may not reverse a conviction based

upon faulty jury instructions unless it is clear that the jury instructions constituted prejudicial

error." State v. Grimm, 12th Dist. Clermont No. CA2018-10-071, 2019-Ohio-2961, ¶ 26,

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citing State v. Napier, 12th Dist. Clermont No. CA2016-04-022, 2017-Ohio-246, ¶ 30.

Therefore, when reviewing a trial court's jury instructions, this court must affirm a conviction

if the trial court's jury instructions, when taken in their entirety, "fairly and correctly state the

law applicable to the evidence presented at trial." Davis at ¶ 28.

       {¶ 8} The trial court instructed the jury on constructive possession as follows:

               Constructive possession exists when one is conscious of the
               presence of an object and able to exercise dominion and control
               over it, even if it's not in one's immediate physical possession.
               Constructive possession may be proven by circumstantial
               evidence alone. Two or more persons may have joint
               constructive possession of the same object or substance.

       {¶ 9} We find no error in the trial court's jury instruction for constructive possession.

Despite Sexton's claims, the trial court's jury instruction was a complete and proper

statement of the law as it relates to constructive possession. That is to say, the trial court

"properly (1) defined constructive possession, (2) informed the jury that a defendant must

be 'conscious of the presence' of the contraband for constructive possession to exist; (3)

explained the significance of circumstantial evidence; (4) instructed the jury on the

importance of a defendant's proximity to contraband; and (5) explained that more than one

person could have constructive possession of the same object." State v. Brown, 4th Dist.

Athens No. 09CA3, 2009-Ohio-5390, ¶ 38.

       {¶ 10} This court has in fact used that exact same language to explain the

circumstances under which constructive possession exists. See State v. Cobb, 12th Dist.

Butler No. CA2007-06-153, 2008-Ohio-5210, ¶ 100 ("[c]onstructive 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"); see also State v.

Schnecker, 12th Dist. Butler No. CA2004-10-264, 2005-Ohio-6427, ¶ 18 (constructive

possession exists "where one is conscious of the presence of the object and able to


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exercise dominion and control over it, even if it is not within his immediate physical

possession"). Therefore, because the trial court provided the jury with a complete and

proper jury instruction for constructive possession, Sexton's first assignment of error lacks

merit and is overruled.

       {¶ 11} Assignment of Error No. 2:

       {¶ 12} APPELLANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW

WAS DENIED BECAUSE THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY

AS TO CONSCIOUSNESS OR AWARENESS OF GUILT, AND, ADDITIONALLY,

ADMITTED A RELATED 911 CALL.

       {¶ 13} In his second assignment of error, Sexton argues the trial court erred by

instructing the jury on flight as evidence of his consciousness of guilt since his "flight from

the scene where a 911 call was made had nothing to do with the charge subject to this

matter" and was "unrelated to drugs." However, although we agree that 9-1-1 was called

to report something other than Sexton's aggravated possession of drugs, it was a question

for the jury to determine whether Sexton's flight from the scene should be considered as

evidence of his consciousness of guilt for that crime. See State v. Lawson, 12th Dist. Butler

No. CA99-12-226, 2001 Ohio App. LEXIS 1916, *25 (Apr. 30, 2001). The instruction

provided to the jury in fact specifically stated as much by noting that it was for the jury to

determine whether Sexton fled from the scene and, if so, whether his flight from the scene

was motivated by his consciousness of guilt "of the crime charged." Therefore, even though

the 9-1-1 call was made to report something other than Sexton's aggravated possession of

drugs, we find no error in the trial court's decision instructing the jury on flight as evidence

of Sexton's consciousness of guilt for that crime. Sexton's claim otherwise lacks merit.

       {¶ 14} We also find no merit to Sexton's claim that the trial court erred by admitting

the 9-1-1 call into evidence. The 9-1-1 call was relevant and admissible as a present sense

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impression pursuant to Evid.R. 803(1), "which provides that statements describing or

explaining an event or condition made while the declarant was perceiving the event or

condition, or immediately thereafter, are admissible." State v. Naugler, 12th Dist. Madison

No. CA2004-09-033, 2005-Ohio-6274, ¶ 26. The 9-1-1 call was also admissible to explain

the immediate background of the acts that formed the basis for the charged crime. See

Grimm, 2019-Ohio-2961 at ¶ 20. This holds true despite the fact the 9-1-1 call was made

to report something other than Sexton's aggravated possession of drugs. To hold otherwise

would require law enforcement to ignore evidence of other crimes simply because a 9-1-1

call was made to report a different, more specific crime. Therefore, although the 9-1-1 call

was made to report something other than Sexton's aggravated possession of drugs,

Sexton's claim that the trial court erred by admitting the 9-1-1 call into evidence lacks merit.

Accordingly, finding no merit to any of the arguments raised herein, Sexton's second

assignment of error is overruled.

       {¶ 15} Assignment of Error No. 3:

       {¶ 16} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR

GOES AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN

APPELLANT'S CONVICTION FOR ONE COUNT OF POSSESSION OF DRUGS, ORC

2925.11(A), A FELONY OF THE FIFTH DEGREE.

       {¶ 17} In his third assignment of error, Sexton argues his conviction was not

supported by sufficient evidence and was against the manifest weight of the evidence.

Sexton supports this claim by alleging his conviction must be reversed since the jury's

verdict was "tainted by the confusing and prejudicial jury instructions and/or evidence

reviewed above." This, according to Sexton, creates "reasonable doubt" that the jury

"properly deliberated regarding the nature of the substantial circumstantial evidence before

them." However, as discussed more fully above, the trial court did not err by instructing the

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jury on constructive possession or flight as evidence of Sexton's consciousness of guilt.

The trial court also did not err by admitting the 9-1-1 call into evidence. Simply stated, the

record contains more than enough competent, credible evidence to support Sexton's

conviction. Therefore, because Sexton's conviction was supported by sufficient evidence

and was not against the manifest weight of the evidence, Sexton's third assignment of error

lacks merit and is overruled.

       {¶ 18} Judgment affirmed.


       M. POWELL, P.J., and RINGLAND, J., concur.




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