[Cite as State v. Moore, 2011-Ohio-5830.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96206



                                      STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.

                                    LAVELLE MOORE
                                              DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-541111

        BEFORE: Cooney, J., Blackmon, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: November 10, 2011
                                          2

ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender

David M. King
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: T. Allan Regas
Alison Foy
Norman Schroth
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




COLLEEN CONWAY COONEY, J.:

      {¶ 1} Defendant-appellant, Lavelle Moore (“Moore”), appeals his conviction for

possession of crack cocaine. We find no merit to the appeal and affirm.

      {¶ 2} In September 2010, Moore was charged with drug trafficking, drug

possession of between 10 and 25 grams of crack cocaine, and possession of criminal
                                           3

tools, with forfeiture specifications. The case proceeded to a jury trial at which the

following evidence was presented.

       {¶ 3} Detective Robert Martin (“Martin”) of the Cleveland police vice unit,

testified that on the evening of August 18, 2010, while he was conducting surveillance

outside a known “drug house” in the area of East 117th Street and Sellers Avenue, he

observed a male standing at the driver’s window of a Chrysler Pacifica holding a plastic

baggie. Martin testified that, based on his years of training and experience, this activity

was indicative of drug trafficking. As he approached the Pacifica, he heard someone

yell, “vice.” Martin observed the man close his hand around the bag and walk quickly

around the Pacifica to the passenger door before the vehicle drove off.

       {¶ 4} Martin followed the vehicle and called take-down units that stopped the

Pacifica approximately one mile away. Officer Brian Moore, who conducted the stop

with Officer Joseph Hageman (“Hageman”), testified that as he approached the passenger

side of the vehicle, he observed Moore in the front passenger seat in an awkward position

with his back turned to the window and his arms reaching toward the floor. After

ordering Moore out of the car, Hageman observed a piece of clear plastic material

sticking out between the car’s molding and a plastic flap alongside the center console near

the floor. Hageman pulled the plastic, and a bag of crack cocaine fell out. Police patted

down Moore and found $815 in Moore’s front pocket, including a $100 bill and

twenty-eight $20 bills.
                                              4

       {¶ 5} Moore’s brother, Rashaondell Moore (“Rashaondell”), testified for the

defense, claiming the crack belonged to him. He testified that Lisa Adams (“Adams”)

picked him up on her way to pick up Moore from work and that Adams had no idea that

he possessed a bag of crack. He explained that he was sitting in the front passenger seat

and Moore was in the back seat when Adams dropped him off at the crack house on East

117th Street. When he heard someone yell “vice,” he hid the cocaine behind the panel

alongside the center console before exiting the car and disappearing into the

neighborhood.    Police stopped the car minutes later and found Moore in the front

passenger seat in close proximity to the drugs.

       {¶ 6} The jury found Moore guilty of possession of crack cocaine but not guilty

of drug trafficking or possession of criminal tools. The court sentenced Moore to seven

years in prison, a $15,000 fine, and three years of mandatory postrelease control. Moore

raises four assignments of error on appeal.

                                Manifest Weight of the Evidence

       {¶ 7} In the first assignment of error, Moore argues his conviction is against the

manifest weight of the evidence. He contends the State witnesses were not reliable and

the evidence demonstrated that Rashaondell placed the drugs behind a floor panel in the

car without his knowledge.

       {¶ 8} A challenge to the manifest weight of the evidence attacks the verdict in

light of the State’s burden of proof beyond a reasonable doubt.   State v. Thompkins, 78
                                             5

Ohio St.3d 380, 386-387, 1997-Ohio-52, 678 N.E.2d 541. When reviewing a claim that

the judgment was against the manifest weight of the evidence, we review the entire

record, weigh both the evidence and all the 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.      Id.   Therefore, an appellate court will overturn a

conviction due to the manifest weight of the evidence only in extraordinary circumstances

to correct a manifest miscarriage of justice, and only when the evidence presented at trial

weighs heavily in favor of acquittal. Id. at 387.

       {¶ 9} Moore was convicted of drug possession in violation of R.C. 2925.11(A),

which provides that “[n]o person shall knowingly obtain, possess, or use a controlled

substance.”

       {¶ 10} Although Rashaondell testified that he owned the cocaine found in the

vehicle, the record contains overwhelming evidence supporting Moore’s conviction.

First, Martin testified that he observed a male holding a plastic baggie up to the driver’s

window of the Pacifica, which was parked across the street from a known crack house.

Martin could clearly see the plastic baggie because the Pacifica was parked directly

beneath two street lights. Martin’s suspicions of drug activity were corroborated when

someone yelled “vice,” and the man with the baggie immediately went around the car to

the passenger side of the vehicle as if to evade detection.
                                           6

      {¶ 11} Although Martin did not actually see Moore get into the Pacifica because

his view was blocked by the rear of the vehicle, he testified that there was no one left in

the street when the vehicle drove away. When the take-down units stopped the vehicle

minutes later, police observed Moore reaching down to the location where the drugs were

found. The jury had the opportunity to view the plastic flap behind which the drugs were

hidden, and could see that the flap could be easily removed and replaced. The jury could

reasonably infer that Moore attempted to hide the cocaine behind the flap when police

stopped the vehicle.

      {¶ 12} Even if Rashaondell “owned” the drugs, there was competent, credible

evidence demonstrating that Moore knew the drugs were in the car, and that he was able

to control the “premises” where the drugs were located. Therefore, Moore’s conviction

for the possession of crack cocaine is supported by the manifest weight of the evidence.

      {¶ 13} Accordingly, the first assignment of error is overruled.

                                      The Howard Charge

      {¶ 14} In his second assignment of error, Moore argues the trial court improperly

instructed the deadlocked jury by failing to comply with the requirements set forth in

State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d 188. Moore contends the trial

court’s instruction coerced the jury to reach a unanimous verdict that might otherwise

have remained deadlocked and necessitated a mistrial.
                                             7

       {¶ 15} Jury instructions are within the trial court’s discretion.      State v. Guster

(1981), 66 Ohio St.2d 266, 271, 421 N.E.2d 157. Therefore, a trial court’s decision

whether to give an instruction pursuant to Howard will not be disturbed absent an abuse

of discretion.

       {¶ 16} In Howard, the Ohio Supreme Court set forth the proper instruction the trial

court must give a jury that has declared itself deadlocked. The “Howard charge” must be

balanced, neutral, and advance the following two goals: (1) encourage a unanimous

verdict only when one “can conscientiously be reached,” leaving open the possibility of a

hung jury and resulting mistrial; and (2) call for all jurors to reevaluate their opinions, not

just the jurors in the minority. Id. However, the charge must remind the jury of its

purpose — to reach a unanimous decision. Id. at 24.

       {¶ 17} The record indicates that it was 6:30 p.m. on a Friday when the jurors

advised the court they were at an impasse. The jury began deliberations at approximately

2:15 p.m. that afternoon and had been deliberating for approximately four hours.

Although trial counsel requested the court give a Howard charge, the court reminded

counsel that deliberations had only just begun that afternoon and refused to give a

Howard charge at this stage of deliberations.           Instead, the court instructed, over

objection:

       “Well, ladies and gentlemen, you just began your job this afternoon. So some
       juries deliberate for weeks. This is jury duty. This is deliberation. A jury’s work
       is completed when there is a verdict reached on all the counts by all the jurors
                                          8

      when you reached a verdict. It’s a unanimous system. It takes work. So have a
      good weekend, and we will see you Monday morning. This court is adjourned.”

      {¶ 18} Although some courts have held that a Howard charge after four hours of

deliberations is not premature, the appropriateness of the Howard charge depends on

whether the jury is truly deadlocked. Whether the jury is irreconcilably deadlocked is a

“discretionary determination” for the trial court to make. Arizona v. Washington (1978),

434 U.S. 497, 509, 98 S.Ct. 824, 54 L.Ed.2d 717, fn. 28.             In making such a

determination, the court must evaluate each case based on its own particular

circumstances. State v. Mason (1998), 82 Ohio St.3d 144, 167, 694 N.E.2d 932. There

is no bright-line test to determine what constitutes an irreconcilably deadlocked jury.

State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶37.

      {¶ 19} The trial judge did not believe the jury was truly deadlocked. The judge

reminded counsel that they did not “have enough information on whether they reached

verdicts on some of the counts and not on others.” He stated that he did not want to rush

them because it was late on Friday. He told counsel: “It’s Friday afternoon. A couple

people might be in a hurry, a couple of people might have places to go, things to do.

They are coming back Monday.”

      {¶ 20} Under these circumstances, we do not find the court’s instruction improper.

The court merely explained that deliberations often take a long time and reminded them

of their duty to try to reach a unanimous verdict. Indeed, the Howard charge itself is
                                             9

intended to challenge the jury to reach a consensus. State v. Robb, 88 Ohio St.3d 59, 81,

2000-Ohio-275, 723 N.E.2d 1019.

       {¶ 21} Accordingly, the second assignment of error is overruled.

                                     Constructive Possession

       {¶ 22} In the third assignment of error, Moore argues the trial court abused its

discretion when it instructed the jury on “constructive possession.”         In his fourth

assignment of error, he argues his trial counsel was ineffective for failing to object to an

erroneous instruction on “constructive possession.” We address these assigned errors

together because they are closely related.

       {¶ 23} Moore contends the court’s definition of          “constructive possession”

conflicts with the statutory definition of “possession” set forth in R.C. 2925.01(K), which

provides:

       “‘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.”

       {¶ 24} In defining “constructive possession,” the court stated:

       “Constructive possession is also sufficient to prove possession. Possession may not
       be inferred from mere access to the thing or substance; however, a person
       constructively possesses a thing or substance when he knowingly exercises, or is
       able to exercise, dominion or control over the thing or substance, or over the
       premises on which the thing or substance is found or concealed, even though the
       thing or substance is not in his physical possession.”
                                          10

      {¶ 25} The Ohio Supreme Court has held that knowledge of illegal goods on one’s

property is sufficient to show constructive possession. State v. Hankerson (1982), 70

Ohio St.2d 87, 91, 434 N.E.2d 1362, cert. denied, 459 U.S. 870, 103 S.Ct. 155, 74

L.Ed.2d 130.      In State v. Chandler, Cuyahoga App. Nos. 93664 and 93665,

2011-Ohio-590, this court further defined “constructive possession” as “knowingly

exercising dominion and control over an object, even though that object may not be

within one’s immediate physical possession.” Id. at ¶55, citing Hankerson. Thus, to

establish “constructive possession,” the State must prove that the defendant: (1) knew the

contraband was present on the premises and (2) that the defendant knowingly exercised

control over the contraband, even though it may not be within his immediate physical

possession.

      {¶ 26} This court has previously held that language defining “constructive

possession” identical to the court’s definition quoted above is permissible and does not

constitute an abuse of discretion. See, e.g., State v. Santiago, Cuyahoga App. No. 95333,

2011-Ohio-1691; State v. Warren, Cuyahoga App. No. 87726, 2006-Ohio-6415; State v.

Powell, Cuyahoga App. No. 82054, 2003-Ohio-4936; State v. Loper, Cuyahoga App.

Nos. 81297, 81400, 81878, 2003-Ohio-3213. However, the trial court asked the jurors if

they had any questions about possession and one juror requested further instruction on

“the nuances of constructive versus actual” possession.        The court responded by
                                             11

repeating the instruction, which included the requirement that the defendant control the

premises containing the contraband, and further explained:

       “Knowledge. You don’t have to have ownership but knowledge. So knowingly.
       Knowledge of illegal goods on one’s property is sufficient to show constructive
       possession. However, the mere fact that property is located within premises under
       one’s control does not, of itself, constitute constructive possession.”

       {¶ 27} We find the court’s instruction is an accurate statement of the law and was

not an abuse of discretion. Since the instruction was permissible and appropriate, trial

counsel was not ineffective for failing to object to it.

       {¶ 28} Therefore, the third and fourth assigned errors are overruled.

       Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
                                           12

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


       ______________________________________________
       COLLEEN CONWAY COONEY, JUDGE

       PATRICIA ANN BLACKMON, P.J., CONCURS;
       MELODY J. STEWART, J., DISSENTS (WITH SEPARATE OPINION
       ATTACHED).

       MELODY J. STEWART, J., DISSENTING:

       {¶ 29} I dissent from the majority’s resolution of the second assignment of error.

I find that the trial court’s instruction to the jury was improper because the court did not

leave open the option of the jury being deadlocked, or remaining deadlocked if indeed

they were.   The instruction, therefore, misstated the law.
                                            13

       {¶ 30} As the majority notes, deciding whether to give a Howard instruction is

within the trial court’s discretion.    Likewise, the decision to issue a supplemental

instruction is also within the court’s discretion. State v. Bolling (July 19, 2001), 8th

Dist. No. 78632.    I agree that the trial court did not err with regard to either of these

decisions.   And, I admit, a Howard instruction may not have been warranted in this case.

 But the trial court, nevertheless, decided to instruct the jurors on their duties in response

to a question about being deadlocked. That instruction was, at least, Howard-like in

nature or, at best, a modified Howard instruction. Whether the court’s instructions bear

the Howard moniker or simply invoked the tenets of Howard, they were supplemental

instructions given to the jury regarding their task as jurors. Because of the nature of that

instruction, the trial court was still required to have the instruction comport with the

balance and neutrality factors set forth in Howard. It did not.

       {¶ 31} The law encourages jurors not to deadlock and likewise permits a court’s

urging jurors to make reasonable efforts to decide a case. State v. Gary, 3d Dist. No.

5-99-51, 2000-Ohio-1679.      However, the court’s urging can be done only with the

express proviso that jurors decide the case “if they can conscientiously do so.” Howard,

supra, 42 Ohio St.3d at 19, 24.
                                            14

        {¶ 32} In response to the jury’s questions on whether different votes on a particular

count meant that they were hung, and “Do we keep going until we all agree ***,” the

court stated: “Well, ladies and gentlemen, you just began your job this afternoon. So

some juries deliberate for weeks. This is jury duty. This is deliberation. A jury’s

work is completed when there is a verdict reached on all the counts by all the jurors when

you reached a verdict.      It’s a unanimous system.     It takes work.    So have a good

weekend and we will see you Monday morning.” This instruction is not balanced and

neutral.     It does not encourage a unanimous verdict if one can be conscientiously

reached.     It simply requires a unanimous verdict.

        {¶ 33} The majority characterizes the instruction as “the court merely explain[ing]

that deliberations often take a long time and remind[ing the jury] of their duty to try to

reach a unanimous verdict.”      The majority, however, neglects to interpret the statement,

“[a] jury’s work is completed when there is a verdict reached on all counts by all jurors

***.”      Important to note also is that the trial court never really answered the jury’s

questions about being deadlocked.        The court was no doubt being cautious to not

encourage a hung jury. But in doing so, it gave an instruction that misstated the law.

The court elected to give this instruction even after defense counsel implored the court to

use the proper balancing language set forth in Howard.

        {¶ 34} During discussions between the court and both sides regarding the jury

questions, the following exchange took place:
                                                      15

       {¶ 35} “The Court:          I’m asking what you want [the jury to be told].

       {¶ 36} “***

       {¶ 37} “[Defense Counsel]:              I want you to say, please, that *** [w]e really need

you to make your best effort to arrive at a verdict without disturbing your individual

conscience.

       {¶ 38} “***

       {¶ 39} “The Court: *** I was going to say, the jury just began its job this

afternoon.     Come on back Monday. The jury’s work is not complete until they reach a

unanimous verdict.

       {¶ 40} “[Defense Counsel]:              That’s what I have a problem with.

       {¶ 41} “The Court:          You want me to tell them they have a hung jury?

       {¶ 42} “[Defense Counsel]:              No, I don’t want a hung jury.

       {¶ 43} “The Court:           No judge in their right mind is ever going to mention the

option of a hung jury to a jury. Has anybody ever instructed hung jury?               Please let me

see that instruction.

       {¶ 44} “[Defense Counsel]:              I’m saying in the Allen[1] or Howard charge, it says,

don’t disturb your individual conscience.




        Allen v. United States (1896), 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528.
       1
                                            16

       {¶ 45} “The Court:     We’re nowhere near there.         We’ll give the appropriate

charge.”

       {¶ 46} The court apparently believed that the factors enunciated in Howard did not

need to be honored because it had decided not to give the full Howard instruction.

       {¶ 47} In a case with almost identical facts regarding this issue, this court in State

v. Bolling, supra, found that the trial court erred in telling jurors that a unanimous verdict

was required of them. In that case, after deliberating for one day, the jury asked the

court, “‘Must we have a decision on all counts, or can one or two counts be undecided?’

The trial court, without advising the parties of this communication from the jury or the

trial court’s response, answered the jury question by writing on the same communication

it had received from the jury, ‘A decision is required on all counts.            Continue to

deliberate to the best of your ability.’”    The defendant argued that the supplemental

instruction “improperly emphasized the necessity to reach a verdict on each count,

thereby coercing the guilty verdicts***.”       Id. at 4.    Finding plain error, both the

majority and concurring opinions agreed that the trial court’s instruction was one Howard

specifically seeks to guard against, noting “[a] supplemental instruction must not be

coercive by stressing that the jury must reach a verdict, a clear misstatement of law.”    Id.

at 5 (Cooney, J., concurring), quoting Howard, 42 Ohio St.3d at 23.

       {¶ 48} I would sustain this assignment of error, and reverse and remand.
17
