[Cite as State v. Cuffman, 2011-Ohio-4324.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                           CASE NO. 3-11-01

        v.

LARRY A. CUFFMAN,                                     OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                           CASE NO. 3-11-02

        v.

LARRY A. CUFFMAN,                                     OPINION

        DEFENDANT-APPELLANT.


               Appeals from Crawford County Common Pleas Court
                  Trial Court Nos. 10-CR-0064 and 07-CR-0085

                                     Judgments Affirmed

                            Date of Decision: August 29, 2011


APPEARANCES:

        John Spiegel for Appellant

        Clifford J. Murphy for Appellee
Case Nos. 3-11-01 and 3-11-02



PRESTON, J.

      {¶1} Defendant-appellant, Larry A. Cuffman (hereinafter “Cuffman”),

appeals the Crawford County Court of Common Pleas’ judgment of conviction for

possession of drugs and its judgment revoking his previously imposed community

control based upon that conviction. For the reasons that follow, we affirm.

      {¶2} Around 11:00 p.m. on May 4, 2010, Lieutenant Assenheimer observed

a man enter a known drug house for a couple minutes and then quickly leave on

foot. (Aug. 2, 2010 Tr. at 5, 43-44). Assenheimer called Officer R. Thomas

Walker and gave him a physical description of the man. (Id.). Officer Walker saw

the man and recognized him as Cuffman. (Id. at 5-7). Walker told Assenheimer

that the man was Cuffman, and Assenheimer indicated that Cuffman’s wife had an

outstanding warrant for her arrest. (Id. at 44-46). Lieutenant Assenheimer then

asked Walker to talk to Cuffman about his wife’s whereabouts and about his

activity at the known drug house. (Id. at 8-9, 21-22, 44-46). During the encounter

with Cuffman, Walker, who was accompanied by Auxiliary Officer Jager,

attempted to frisk Cuffman for weapons, but Cuffman resisted and began to flee.

(Id. at 13-17, 48). Officer Jager lunged at Cuffman’s feet and tripped him. (Id. at

17-18).   Cuffman was taken into custody, and, at that point, Assenheimer

discovered two aluminum foil balls believed to contain heroin lying at Cuffman’s



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Case Nos. 3-11-01 and 3-11-02



feet. (Id. at 48-49). A third aluminum foil ball believed to contain heroin was

found about five to ten (5-10) feet from where the struggle ended. (Id. at 70, 82).

       {¶3} On May 10, 2010, the Crawford County Grand Jury indicted Cuffman

on one count of possession of drugs in violation of R.C. 2925.11(A), (C)(6)(a), a

fifth degree felony, which was assigned case no. 10-CR-0064. (Doc. No. 1). On

May 19, 2010, Cuffman filed a written plea of not guilty. (Doc. No. 5).

       {¶4} As a result of the aforementioned indictment, on May 25, 2010, the

State filed a motion to show cause why Cuffman’s community control in case no.

07CR0085 should not be revoked. (Doc. No. 38).

       {¶5} On July 6, 2010, Cuffman filed a motion to suppress the evidence

seized as a result of the May 4, 2010 stop in both cases. (Doc. Nos. 11, 41). The

State filed responses in both cases on July 8, 2010. (Doc. Nos. 12, 42). On August

2, 2010, the trial court held a hearing on the motion, and the trial court overruled

the motion on September 9, 2010. (Doc. Nos. 17, 20).

       {¶6} On October 21-22, 2010, a jury trial was held on the possession

charge, and the jury found Cuffman guilty. (Doc. No. 26). On November 16,

2010, Cuffman filed a motion for a new trial. The trial court overruled the motion

on December 3, 2010. (Doc. Nos. 31, 33).

       {¶7} On December 23, 2010, Cuffman was sentenced to ten (10) months

imprisonment in case no. 10-CR-0064. (Doc. No. 34). On that same day, the trial

                                         -3-
Case Nos. 3-11-01 and 3-11-02



court found that, as a result of his drug possession conviction, Cuffman violated

the terms of his community control in case no. 07-CR-0085. The trial court

revoked Cuffman’s community control and imposed a sentence of ten (10) months

for the violation. (Doc. No. 53). In both case nos. 10-CR-0064 and 07-CR-0085,

the trial court ordered that the terms imposed be served consecutive to one another

for a total term of twenty (20) months imprisonment. (Doc. Nos. 34, 53).

      {¶8} On January 21, 2011, Cuffman filed notices of appeal in case nos. 10-

CR-0064 and 07-CR-0085 and a motion to consolidate. (Doc. Nos. 38, 56). The

appeal from case no. 10-CR-0064 was assigned appellate case no. 3-11-01, and the

appeal from case no. 07-CR-0085 was assigned appellate case no. 3-11-02. On

January 27, 2010, this Court consolidated the cases for appeal.

      {¶9} Cuffman now appeals raising three assignments of error for our

review.

                       ASSIGNMENT OF ERROR NO. I

      THE TRIAL COURT ERRED IN OVERRULING THE
      MOTION TO SUPPRESS THE FRUITS OF THE SEARCH OF
      DEFENDANT.

      {¶10} In his first assignment of error, Cuffman argues that the trial court

erred by overruling his motion to suppress the evidence seized as a result of the

May 4, 2010 stop. Cuffman argues that the officer did not have a sufficient

justification to perform a Terry frisk simply because he was seen leaving a known

                                        -4-
Case Nos. 3-11-01 and 3-11-02



drug house. Cuffman further argues that, even if the Terry frisk was lawful,

officers exceeded Terry’s scope when they “forced [him] to empty his pockets.”

(Appellant’s Brief at 7). Cuffman further argues that officers were not justified in

seizing the cigarette pack after he removed it from his pocket, since it could not

have contained a weapon. Finally, Cuffman argues that his encounter with police

was not “consensual,” and the officers’ reason for stopping him was pre-textual

from the beginning.

       {¶11} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶8, citing State v. Mills (1992), 62 Ohio St.3d 357, 366, 582

N.E.2d 972. At a suppression hearing, the trial court assumes the role of trier of

fact and, as such, is in the best position to evaluate the evidence and the credibility

of witnesses. Id.

       {¶12} When reviewing a ruling on a motion to suppress, deference is given

to the trial court’s findings of fact so long as they are supported by competent,

credible evidence. Burnside at ¶8. With respect to the trial court’s conclusions of

law, however, our standard of review is de novo, and we must decide whether the

facts satisfy the applicable legal standard. State v. McNamara (1997), 124 Ohio

App.3d 706, 710, 707 N.E.2d 539.



                                         -5-
Case Nos. 3-11-01 and 3-11-02



       {¶13} At the suppression hearing, Bucyrus Police Department Lieutenant

Neil Assenheimer testified that, around 11:00 p.m. on May 4, 2010, he observed a

man, enter a known drug house, stay for a few minutes, and then leave walking

away rapidly. (Aug. 2, 2010 Tr. at 42-45). Assenheimer testified that he called

Walker, who was working in the area with Auxiliary Officer Jager, and informed

him of what he observed. (Id. at 44). Assenheimer testified that Walker identified

the man as Cuffman, and he told Walker to attempt to talk to Cuffman about the

whereabouts of his wife, who had an active warrant. (Id. at 44-45, 47).

Assenheimer instructed Walker to ask Cuffman whether his wife was at home so

they could execute the warrant and to question Cuffman about what was going on

tonight at the house he left. (Id. at 44-45). Assenheimer testified that, when he

arrived on the scene after Walker and Jager encountered Cuffman, Cuffman

initially appeared to be cooperating but suddenly broke free and attempted to flee.

(Id. at 48). He further testified that they managed to take Cuffman to the ground

and take him into custody. (Id.). At that point, Assenheimer discovered aluminum

foil balls at Cuffman’s feet, which he believed contained heroin. (Id.).

Assenheimer testified that Cuffman denied that the aluminum foil balls belonged

to him, and Cuffman stated that it was common to see heroin laying on the ground

in that area of town. (Id. at 49). He further testified that Cuffman stated that he ran

in order to tell his wife about her warrant. (Id.).

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Case Nos. 3-11-01 and 3-11-02



       {¶14} On cross-examination, Assenheimer testified that he did not know

whether Cuffman had any prior drug convictions. (Id. at 52). He testified that

Cuffman was discovered with a knife on one particular occasion. (Id. at 53). He

testified that he did know that Cuffman has had warrants and has been involved in

drug usage and possible drug trafficking in the past, as reported by Walker. (Id. at

54). Assenheimer testified that he called Walker using his cell phone because the

locations that they watch often have police scanners. (Id. at 55). He testified that

he found two aluminum foil balls at Cuffman’s feet, and then Officer Swalley

found another aluminum foil ball five to ten (5-10) feet down the sidewalk from

where the struggle ended. (Id. at 63, 70, 82).

       {¶15} Bucyrus City Patrolman R. Thomas Walker testified that, while he

was doing patrol work around 11:00 p.m. on May 4, 2010, Lieutenant

Assenheimer observed a subject leave a known drug house. (Id. at 5-6). Walker

testified that Assenheimer provided him with a physical description of the

individual and asked him to check on the subject (Id.). Walker testified that he

observed the subject walking at a “pretty good pace,” and that eventually he was

able to identify him as Cuffman. (Id. at 7-8). Walker testified that he has had

previous contact with Cuffman, and that Cuffman was a “known drug offender,

possibly involved in drug sales.” (Id. at 8). Walker testified that Cuffman “started

walking faster” to the point of jogging or running when Cuffman saw the police

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Case Nos. 3-11-01 and 3-11-02



cruiser. (Id. at 10). Walker testified that he was also aware of the fact that

Cuffman’s wife had an outstanding warrant, and that he encountered Cuffman

because of his wife’s warrant and because he suspected Cuffman might be in

possession of drugs. (Id. at 9-10). Walker testified that he parked his cruiser,

exited the cruiser, and asked Cuffman to stop, which he did. (Id. at 11). Walker

testified that, when he was standing there talking to Cuffman about four or five

feet away, Cuffman’s voice was cracking and Cuffman was visibly shaking. (Id. at

12). Cuffman also removed his right hand from his pocket but would not remove

his left hand from his pocket, which concerned Walker. (Id. at 12-13). Walker

testified that he feared Cuffman may have a weapon so he asked Cuffman if he

would mind if he patted him down for weapons. (Id. at 13). Walker testified that

Cuffman initially agreed, so he placed his hand on Cuffman’s right arm, turned

him toward the cruiser, and started to walk him to the cruiser. (Id. at 14). Walker

testified that, once they arrived at the cruiser, Cuffman removed his left hand from

his pocket, and “it looked like he had cigarettes or something in there but he was

cupping it very tightly.” (Id.). Walker testified that, after Cuffman removed the

cigarettes from his left pocket, there was still an unidentified bulge in the pocket

so he reached around to pat Cuffman’s pocket, but Cuffman immediately began

“pulling away, jerking you know, fighting like crazy with this.” (Id. at 14-15).

Walker asked Cuffman to stop several times, but Cuffman refused. (Id.). Walker

                                        -8-
Case Nos. 3-11-01 and 3-11-02



testified that he asked to pat down Cuffman, not search him, and that he did not

want to reach in Cuffman’s pocket but “make sure there was no knife or

something in that particular pocket.” (Id.). Walker testified that he has arrested

Cuffman a couple of times, and that on at least one occasion Cuffman has resisted

arrest. (Id. at 16).     Walker testified that Cuffman’s behavior that night—

specifically, his physical shaking and his cracked voice—was different than it was

during his previous arrests. (Id.).

       {¶16} On cross-examination, Walker testified that Assenheimer contacted

him twice that night using his cell phone before apprehending Cuffman. (Id. at

20). Walker testified that they use cell phones since many of the drug houses have

police scanners in them. (Id. at 22). Walker testified that Cuffman was a known

drug offender leaving a known drug house. (Id. at 24). Walker testified that he did

not know whether Cuffman had any drug convictions, but he had knowledge of

Cuffman’s drug involvement from police intelligence. (Id. at 25). Walker testified

that he has never found a weapon on Cuffman in the past. (Id. at 33). Walker

testified that Cuffman placed the contents of his right pants pocket onto the hood

of the cruiser, but Cuffman held up his hand from his left pants pocket and said “I

don’t have anything and immediately put it back in his pocket.” (Id. at 37-38).

       {¶17} Auxiliary Officer Josh Jager testified that he was working with

Walker on the night of May 4, 2010 when they spotted Cuffman. (Id. at 73-75).

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Case Nos. 3-11-01 and 3-11-02



Jager testified that they yelled, “Hey, Larry,” but Cuffman sped up and continued

walking. (Id. at 75). Jager testified that they were going to stop Cuffman to advise

him that his wife had a warrant. (Id. at 76). Jager testified that Cuffman came over

to talk to them and his left hand was in his pocket and he was shaking and

sweating. (Id.). Jager testified that they advised Cuffman that his wife had a

warrant, and Cuffman started to walk away while stating he was going to go tell

his wife about the warrant. (Id.). Jager testified that they asked Cuffman if he had

anything in his pocket that they needed to know about, and Cuffman stated that he

did not have any drugs. (Id.). Jager testified that they never asked Cuffman about

drugs in his pocket. (Id.). Jager testified that Cuffman still had his hand in his

pocket so they asked if they could pat him down for weapons. (Id. at 77). Jager

testified that Cuffman took his left hand out of his pocket, and he had cigarettes

cupped in his hand, which he placed on the police cruiser. (Id.). Jager testified

that Walker then attempted to pat down Cuffman, and Cuffman “became irate,

threw his right elbow back and that’s when the struggle started.” (Id.). Jager

testified that, after he tackled Cuffman, he observed two balls of foil lying beside

Cuffman on the sidewalk. (Id. at 80).    Jager testified that Swalley discovered a

third ball of foil six to eight (6-8) feet down from where Cuffman was tackled. (Id.

at 81-82).



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Case Nos. 3-11-01 and 3-11-02



       {¶18} Several of Cuffman’s arguments lack factual support in the record.

To begin with, law enforcement did not force Cuffman to remove items from his

pants pockets; rather, Cuffman voluntarily removed items from his pockets in an

effort to demonstrate that he did not have any weapons.         Additionally, law

enforcement did not seize his pack of cigarettes.     Cuffman either voluntarily

placed the pack of cigarettes on top of the police cruiser or placed them back into

his pocket before he attempted to flee. Regardless, the testimony does not indicate

that the heroin was found in the cigarette box, but was lying in plain sight on the

sidewalk near Cuffman so his argument regarding the alleged seizure of the

cigarette box is a red herring.

       {¶19} The real issue in this case is whether the officers were permitted to

pat-down/frisk Cuffman pursuant to Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889. The U.S. Supreme Court in Terry v. Ohio concluded that:

       [W]here a police officer observes unusual conduct which leads
       him reasonably to conclude in light of his experience that
       criminal activity may be afoot and that the persons with whom
       he is dealing may be armed and presently dangerous, where in
       the course of investigating this behavior he identifies himself as a
       policeman and makes reasonable inquiries, and where nothing
       in the initial stages of the encounter serves to dispel his
       reasonable fear for his own or others’ safety, he is entitled for
       the protection of himself and others in the area to conduct a
       carefully limited search of the outer clothing of such persons in
       an attempt to discover weapons which might be used to assault
       him.


                                       -11-
Case Nos. 3-11-01 and 3-11-02



392 U.S. at 30. The Ohio Supreme Court, relying on Terry, has similarly held that

“[w]here a police officer, during an investigative stop, has a reasonable suspicion

that an individual is armed based on the totality of the circumstances, the officer

may initiate a protective search for the safety of himself and others.” State v. Bobo

(1988), 37 Ohio St.3d 177, 524 N.E.2d 489, at paragraph two of the syllabus. See,

also, State v. Darrington (1978), 54 Ohio St.2d 321, 322, 376 N.E.2d 954. The

Ohio Supreme Court has also observed that: “[t]he right to frisk is virtually

automatic when individuals are suspected of committing a crime, like drug

trafficking, for which they are likely to be armed.” State v. Evans (1993), 67 Ohio

St.3d 405, 413, 618 N.E.2d 162, citing State v. Williams (1990), 51 Ohio St.3d 58,

554 N.E.2d 108 and United States v. Ceballos (E.D.N.Y.1989), 719 F.Supp. 119,

126. See, also, State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d

864, ¶61, superseded by statute as stated in State v. Singleton, 124 Ohio St.3d 173,

2009-Ohio-6434, 920 N.E.2d 958.

       {¶20} Law enforcement officers herein had a reasonable suspicion that

Cuffman was armed. To begin with, prior to the pat-down, law enforcement

officers witnessed Cuffman enter a known drug house in a high drug area after

11:00 p.m. for a few minutes and then quickly leave on foot, so law enforcement

suspected Cuffman had just engaged in drug trafficking. This fact, in and of itself,

makes the officer’s right to frisk Cuffman “virtually automatic.” Evans, 67 Ohio

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Case Nos. 3-11-01 and 3-11-02



St.3d at 413; Jordan, 2004-Ohio-6085, at ¶61. Aside from that, law enforcement

officers were aware that Cuffman: was previously involved in drug related

activity; had previously resisted arrest; and was previously found with a knife.

Additionally, Patrolman Walker and Auxiliary Officer Jager testified that Cuffman

was very nervous, to the point of visibly shaking and sweating, and his voice was

cracking when he spoke to them, which was unusual behavior for Cuffman who

had been arrested several other times. The officers also testified that Cuffman

continued to keep his left hand in his pants pocket, while talking to them, though

he removed his right hand from his pants pocket. Patrolman Walker testified that

there was a remaining bulge in Cuffman’s left pocket even after Cuffman removed

the contents of that pocket. In light of all of these circumstances, we conclude that

law enforcement had a reasonable suspicion that Cuffman had a weapon, and

therefore, rightfully frisked Cuffman under Terry v. Ohio, supra.

       {¶21} Finally, Cuffman argues that his initial encounter with law

enforcement was not “consensual,” and furthermore, that law enforcement’s

offered reason for stopping him (to inform him of his wife’s warrant) was pre-

textual. These arguments lack merit. “A consensual encounter occurs when a

police officer approaches a person in a public place, engages the person in

conversation or requests information, and the person remains free not to answer

and walk away.” State v. Swonger, 10th Dist. No. 09AP-1166, 2010-Ohio-4995,

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Case Nos. 3-11-01 and 3-11-02



¶9, citing U.S. v. Mendenhall (1980), 446 U.S. 544, 553, 100 S.Ct. at 1870, 64

L.E.2d 497.    “Fourth Amendment guarantees are not implicated in such an

encounter unless the officer has by either physical force or show of authority

restrained the person’s liberty so that a reasonable person would not feel free to

decline the officer’s requests or otherwise terminate the encounter.” Id., citing

Mendenhall, 446 U.S. at 554. Here, law enforcement yelled “Hey, Larry” to

Cuffman while he was walking down the sidewalk in order to ask him a few

questions. The officers remained four to five (4-5) feet away from Cuffman

during their conversation, and the officers did not use any physical force or

exercise any show of force. Under these circumstances, a reasonable person

would have felt free to terminate the conversation and simply walk away. In fact,

the testimony indicates that Cuffman did begin walking away from the

conversation after the officers informed him of his wife’s outstanding warrant.

Cuffman apparently decided to remain there, though, when the officers began to

question him further. The mere approach and questions of Officers Walker and

Jager, without more, does not constitute a ‘show of authority’ sufficient to cause a

reasonable person to believe that he/she was not free to leave. State v. Patrick

(Oct. 22, 1999), 3d Dist. No. 9-99-36, at *2, citing California v. Hodari D. (1991),

499 U.S. 621, 628-29, 111 S.Ct. 1547, 113 L.Ed.2d 690. Rather, this is “‘clearly

the sort of consensual encounter that implicates no Fourth Amendment interest.’”

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Case Nos. 3-11-01 and 3-11-02



Id., quoting Florida v. Rodriguez (1984), 469 U.S. 1, 5-6, 105 S.Ct. 308, 83

L.Ed.2d 165.

       {¶22} We further note that even if this was not a consensual encounter, the

stop was nonetheless permissible under Terry, supra, since the officers had a

reasonable, articulable suspicion that crime was afoot—namely, that Cuffman had

just participated in drug trafficking and may be in possession of drugs. As a final

matter, the officers’ subjective intentions in initiating the encounter with Cuffman

are irrelevant for Fourth Amendment purposes. See Whren v. United States (1996),

517 U.S. 806, 813-14, 116 S.Ct. 1769, 135 L.Ed.2d 89 and Arkansas v. Sullivan

(2001), 532 U.S. 769, 771-72, 121 S.Ct. 1876, 149 L.Ed.2d 994.              As such,

Cuffman’s pre-textual argument is without merit.

      {¶23} Cuffman’s first assignment of error is, therefore, overruled.

                      ASSIGNMENT OF ERROR NO. II

      THE TRIAL COURT ERRED IN OVERRULING THE
      MOTION FOR NEW TRIAL BASED UPON MISCONDUCT
      OF A JURY MEMBER.

      {¶24} In his second assignment of error, Cuffman argues that the trial court

erred in holding a hearing upon his motion for a new trial, and furthermore, erred

by denying the motion when juror misconduct was alleged. Cuffman argues that

one of the jurors, Ms. Emerson, had previously dated his brother and was in a bar



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Case Nos. 3-11-01 and 3-11-02



fight with his wife. Cuffman averred that he did not recognize Ms. Emerson until

after the trial, however, because she was using a different name.

       {¶25} R.C. 2945.79 provides that:

       A new trial, after a verdict of conviction, may be granted on the
       application of the defendant for any of the following causes
       affecting materially his substantial rights:
       ***
       (B) Misconduct of the jury, prosecuting attorney, or the
       witnesses for the state;

See, also, Crim.R. 33(A)(2). Whether to grant a motion for a new trial is within

the trial court’s discretion, and therefore, an appellate court reviews for an abuse

of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, 76, 564 N.E.2d 54. See,

also, State v. Maag, 3d Dist. No. 5-03-32, 2005-Ohio-3761, ¶92. The term abuse

of discretion connotes more than an error of judgment; rather, it implies that the

court’s attitude was unreasonable, arbitrary, or unconscionable. State v. Adams

(1980), 62 Ohio St.2d 151, 157-58, 404 N.E.2d 144.

       {¶26} Upon review, we cannot conclude that the trial court abused its

discretion by denying Cuffman’s motion for a new trial. The trial court cautioned

the potential jurors that a connection with the parties could result in their

dismissal. (Oct. 21, 2010 Tr. at 9). Defense counsel asked each prospective juror

whether they knew Cuffman, and Ms. Emerson did not say anything. (Id. at 32-

33). Defense counsel, however, did not ask the jurors whether they knew any of


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Case Nos. 3-11-01 and 3-11-02



Cuffman’s family members. In support of his motion for a new trial, Cuffman

averred that Ms. Emerson “probably” denied knowing him because she “had it in

for me and my wife.” (Doc. No. 31). Cuffman provided no evidence, however,

that Ms. Emerson actually knew of the relationship between his brother, his wife,

and him. Furthermore, there is no evidence that Ms. Emerson was biased against

Cuffman besides Cuffman’s self-serving averment. Under these circumstances,

we cannot conclude that the trial court abused its discretion by denying the motion

for a new trial. See, e.g., City of Garfield Heights v. Marek (June 16, 1988), 8th

Dist. No. 54145.

        {¶27} Cuffman’s second assignment of error is, therefore, overruled.

                          ASSIGNMENT OF ERROR NO. III

        THERE WAS INSUFFICIENT PROBATIVE ADMISSIBLE
        EVIDENCE TO PROVE THE CHARGE BEYOND A
        REASONABLE DOUBT.

        {¶28} In his third assignment of error, Cuffman argues that there was

insufficient evidence1 to support his conviction for possession of drugs since the

mere presence of the heroin in his vicinity was insufficient to prove that he

knowingly possessed it.




1
  Cuffman also argues that his conviction is against the manifest weight of the evidence under this
assignment of error, however, he did not assert this as part of his assignment of error as required by
App.Rs. 12 and 16, and so we decline to rule upon this argument.

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Case Nos. 3-11-01 and 3-11-02



      {¶29} When reviewing the sufficiency 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 (1981), 61 Ohio St.3d

259, 574 N.E.2d 492, paragraph two of the syllabus.

      {¶30} Cuffman was convicted of drug possession in violation of R.C.

2925.11(A), which provides, “[n]o person shall knowingly obtain, possess, or use

a controlled substance.” “‘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.” R.C. § 2925.01(K).

      {¶31} Possession may be actual or constructive, however. State v. Worley

(1976), 46 Ohio St.2d 316, 329, 348 N.E.2d 351. For constructive possession to

exist, the State must demonstrate that the defendant: was able to exercise

dominion or control over the item, even if he/she does not have immediate

physical possession of it and was conscious of the object’s presence. State v.

Hankerson (1982), 70 Ohio St.2d 87, 91, 434 N.E.2d 1362; State v. Messer

(1995), 107 Ohio App.3d 51, 56, 667 N.E.2d 1022. See, also, State v. Cooper, 3d

Dist. No. 9-06-49, 2007-Ohio-4937, ¶25. The State may prove the existence of the



                                       -18-
Case Nos. 3-11-01 and 3-11-02



various elements of constructive possession of contraband by circumstantial

evidence. Jenks, 61 Ohio St.3d at 272-73.

      {¶32} “A defendant’s mere presence in an area where drugs are located

does not conclusively establish constructive possession.” Cooper, at ¶26, citing

State v. Cola (1991), 77 Ohio App.3d 448, 450, 602 N.E.2d 730; Cincinnati v.

McCartney (1971), 30 Ohio App.2d 45, 48, 281 N.E.2d 855. On the other hand,

“readily usable drugs found in very close proximity to a defendant may constitute

circumstantial evidence and support a conclusion that the defendant had

constructive possession of such drugs.” State v. Barr (1993), 86 Ohio App.3d 227,

235, 620 N.E.2d 242, citing State v. Pruitt (1984), 18 Ohio App.3d 50, 480 N.E.2d

499. See, also, State v. Stewart, 3d Dist. No. 13-08-18, 2009-Ohio-3411, ¶51.

“Mere presence in the vicinity of drugs, coupled with another factor probative of

dominion or control over the contraband, may [also] establish constructive

possession.” Cooper, at ¶26, citing State v. Fugate (Oct. 2, 1998), 4th Dist. No.

97CA2546 and State v. Rocker (Sept. 1, 1998), 10th Dist. No. 97APA10-1341.

      {¶33} At trial, Lieutenant Assenheimer, Officer Walker, and Officer Jager

testified to the events leading up to Cuffman’s arrest for possession of heroin.

Their testimony at trial was substantially similar to their testimony at the

suppression hearing, except that they testified that they encountered Cuffman

around 9:36 p.m., not after 11:00 p.m., as they had testified to at the suppression

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Case Nos. 3-11-01 and 3-11-02



hearing. (Oct. 21, 2010 Tr. at 102, 129, 164). Assenheimer testified that the two

aluminum foil balls he found at Cuffman’s feet were tested and found to contain

0.33 grams of heroin, which was confirmed by testimony of an expert witness at

trial as well. (Oct. 21, 2010 Tr. at 99-100, 137-39); (State’s Ex. 2). He further

testified that Officer Swalley located a third aluminum foil ball five to ten (5-10)

feet away from Cuffman. (Id. at 97, 115). Officer Swaney testified that Cuffman

told him that: he was at the known drug house to collect a $20 debt for Terry Rice,

Jr.; he witnessed heroin on a table inside the house; he does not use heroin, so he

left the house. (Id. at 192).

       {¶34} After reviewing the entire record herein, we conclude that a rational

trier of fact could have concluded that Cuffman possessed heroin. The jury was

presented with more than merely evidence of Cuffman’s presence near the area in

which the drugs were located. Rather, the jury was presented with evidence that

two of the foil balls containing heroin were found lying at Cuffman’s feet; in other

words, in “very close proximity” to Cuffman. Barr, 86 Ohio App.3d at 235, citing

Pruitt, 18 Ohio App.3d 50; Stewart, 2009-Ohio-3411, at ¶51. Cuffman was the

only person in very close proximity to the heroin besides the law enforcement

officers. The jury also heard evidence that Cuffman was observed entering and

leaving a known drug house after being there for no more than five (5) minutes—

typical of a drug transaction—just minutes before he was found with the heroin.

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Case Nos. 3-11-01 and 3-11-02



The jury also heard evidence of Cuffman’s nervous behavior during the stop;

specifically, evidence that Cuffman would not remove his left hand from his

pocket and later removed the contents of the pocket but tightly cupped the

contents in his hand. The jury also heard testimony that the foil balls containing

heroin were found after a physical struggle occurred between Cuffman and the

officers. A rational juror could conclude that Cuffman lost control of the third

aluminum foil ball of heroin, found five to ten (5-10) feet away from him on the

sidewalk, during this struggle. In addition to this, Cuffman told Officer Swaney

that he saw heroin in the house he was seen leaving but he left the house because

he did not use heroin.    Furthermore, when Officers Walker and Jager asked

Cuffman if he had anything of concern in his pocket, Cuffman stated that he did

not have any drugs, even though the officers never mentioned drugs during the

conversation.   All of this circumstantial evidence, along with the very close

proximity of the drugs to Cuffman’s person, could lead a rational trier of fact to

conclude that Cuffman constructively possessed the heroin.

      {¶35} Cuffman’s third assignment of error is, therefore, overruled.

      {¶36} As a final matter, since we have found that the trial court committed

no error with respect to the assignments of error Cuffman raised concerning his

conviction for possession of drugs in case no. 10CR0064, appellate case no. 3-11-



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Case Nos. 3-11-01 and 3-11-02



01, we also find no error in the trial court’s decision to revoke Cuffman’s

community control in case no. 07CR0085, appellate case no. 3-11-02.

       {¶37} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

                                                               Judgments Affirmed

ROGERS, P.J. and WILLAMOWSKI, J., concur in Judgment Only as to
Assignment of Error No. I.

/jlr




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