[Cite as State v. Barnhart, 2019-Ohio-5002.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                      Court of Appeals No. E-18-046

        Appellee                                   Trial Court No. 2014 CR 0609

v.

Paul M. Barnhart                                   DECISION AND JUDGMENT

        Appellant                                  Decided: December 6, 2019

                                               *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Anthony A. Battista III, Assistant Prosecuting Attorney,
        for appellee.

        Mary Elaine Hall, for appellant.

                                               *****

        SINGER, J.

        {¶ 1} Appellant, Paul Barnhart, appeals the August 3, 2018 judgment of the Erie

County Court of Common Pleas. For the following reasons, we affirm the judgment.
     {¶ 2} Appellant sets forth four assignments of error:

            Assignment of Error No. 1: The trial court erred when it denied

     defense counsel’s Rule 29 Motion to Dismiss * * * not because it denied

     the Motion to Suppress Det. Adam West’s testimony, but when the trial

     court allowed the admission of items seized from Holly Robuck - obtained

     from an uncharged third party at the time of the residence check, who did

     not consent to search the bedroom, nor have the apparent authority to give

     consent to search the bedroom[,] the closet, the clothesbasket and the

     dresser, which she shared in common with the defendant-probationer,

     Paul M. Barnhart?

            Assignment of Error No. 2: Defense trial counsel for the defendant-

     appellant, Paul M. [Barnhart,] * * * provided ineffective assistance of

     counsel when he failed to file a Motion to Suppress all [of] the evidence

     seized from the shared common bedroom with Holly Robuck, pursuant to

     Taylor v. United States, 600 F.3d 678 (6th Cir. 2010) and made stipulations

     to admit State’s Exhibits 3, 4 & 7 as against the defendant?

            Assignment of Error No. 3: Whether the trial court committed error

     when it admitted evidence from the defendant-appellant-probationer,

     Paul M. Barnhart’s cellphone against him at trial?

            Assignment of Error No. 4: Whether the trial court committed plain

     and structural error when it did not amend the written jury instructions on




2.
      Constructive Possession * * * over the objection of defense trial counsel,

      regarding the possible constructive possession of drugs by third party,

      Holly Robuck?

                                      Background

                                Case No. 2014 CR 0007

      {¶ 3} On August 30, 2013, an indictment was found by the grand jury charging

appellant with one count of possession of marijuana, a fifth-degree felony. The

indictment was filed in the Erie County Court of Common Pleas, case No. 2014 CR 0007.

      {¶ 4} On February 27, 2014, appellant was arraigned and pled not guilty to the

charge.

      {¶ 5} On August 18, 2014, appellant entered a guilty plea/intervention in lieu of

conviction to the possession charge. Also on August 18, 2014, appellant was presented

with and signed a “Waiver of Rights/Consent to Search” form (“waiver form”). Counsel

for appellant signed the waiver form too. The waiver form stated, in pertinent part:

             I have been advised that while subject to * * * Probation/

      Intervention in Lieu of Conviction (“IILC”) that there may exist times

      when the Erie County Adult Probation Department (“APD”) may want to

      conduct a warrantless search or seizure of my property or my possessions

      or myself to ensure that I am in compliance with my * * * Probation/IILC.

      Further, that the APD’s reasons to conduct such searches and seizures is

      based on a standard lesser than probable cause. It would be based on a




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        reasonable suspicion standard. Additionally, that the conditions of my

        * * * Probation/IILC may require me to submit to warrantless searches and

        seizure of my property, my possessions, and myself. * * *

              I acknowledge that I am knowingly, intelligently, or voluntarily

        waiving my Constitutional Rights against warrantless searches and seizures

        by signing this Waiver of Rights/Consent to Search Form.

        {¶ 6} On November 13, 2014, the court accepted the guilty plea and found

appellant was eligible for intervention in lieu of conviction. Appellant was sentenced to

probation for a period not to exceed three years, beginning November 14, 2014, and was

subject to numerous conditions. The court’s judgment entry was filed on November 18,

2014.

        {¶ 7} On December 1 and 2, 2014, the Sandusky Police Department received

anonymous complaints from a male caller on a drug tip hotline that appellant was in

possession of approximately two ounces of cocaine and 13 pounds of medical marijuana

concealed in five-gallon buckets. The tipster informed police that appellant was on

probation and resided at a certain address on Harrison Street. Police had also received

complaints, throughout the previous year, that appellant was involved in drug trafficking.

Police contacted Erie County Probation and a probation officer confirmed that appellant

was on probation and lived at that address. The probation officer requested that police

assist in conducting a probation check at the Harrison Street home.




4.
       {¶ 8} On the morning of December 3, 2014, appellant met with his probation

officer and completed a monthly probation report. Appellant indicated he lived at the

Harrison Street home (“the home”) with his mother, who owned the home, and her

husband.

       {¶ 9} Later on December 3, 2014, a probation officer and police arrived at the

home and knocked on the door to conduct a check, pursuant to the authority granted

under the waiver form. Appellant answered the door and was advised of the probation

check of the home. Appellant was asked if anyone else was in the home, and he said no.

However, as police and the probation officer walked up the stairs to appellant’s second

floor bedroom, appellant called out, “Holly, my probation officer is here.” Holly

Robuck, appellant’s then-girlfriend, was in appellant’s bedroom, trying to hide drugs in a

clothes basket. Further searching revealed more drugs, empty buckets with green

residue, a digital scale, money and paperwork. Both appellant and Robuck were

detained.

       {¶ 10} Robuck was never charged with any crimes as a result of the search and

seizure. However, appellant was charged with a probation violation as well as other

crimes.

       {¶ 11} On October 27, 2017, appellant filed a motion to suppress the items seized

by police as a result of the alleged unlawful search, seizure and arrest. Appellant claimed

his Fourth Amendment rights were violated “because the information upon which [his]

parole officer based the search was unreliable, due to its source and the police officer to




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whom it was conveyed.” Appellant argued “the actual content of the tip is ultimately

unknown, but certainly unreliable. The informant, according to several sources, had an

improper relationship with the officer to whom she reported the tip.” Appellant

maintained “[w]ithout reasonable suspicion, the parole officer and especially the police

violated [appellant’s] Fourth Amendment right by searching his mother’s house and his

bedroom.” The state opposed the motion.1

      {¶ 12} On August 1, 2018, a hearing was held and the trial court terminated

appellant’s intervention in lieu of conviction and sentenced him to 11 months in prison.

On August 3, 2018, the court filed its judgment entry. Appellant did not file an appeal.

                                Case No. 2014 CR 0609

      {¶ 13} In late December 2014, appellant was charged with possessing criminal

tools. Thereafter, an indictment was found by the grand jury charging appellant with the

following counts: Count 1—preparation of cocaine for sale (27.37 grams), a first-degree

felony; Count 2—possession of cocaine (27.37 grams), a first-degree felony; Count 3—

aggravated possession of drugs (13 tablets of Oxycodone), a fifth-degree felony; and

Count 4—possession of drugs (2 tablets and 1 partial tablet of Hydrocodone), a fifth-

degree felony. These charges originated out of the December 3, 2014 search. On




1
 The trial court did not rule on the motion to suppress, therefore we presume the motion
was denied. See State ex rel. Cassels v. Dayton City Schools Dist. Bd. of Edn., 69 Ohio
St.3d 217, 223, 631 N.E.2d 150 (1994).




6.
February 11, 2015, the indictment was filed in the Erie County Court of Common Pleas,

case No. 2014 CR 0609.

         {¶ 14} On February 26, 2015, appellant was arraigned and pled not guilty to the

charges.

         {¶ 15} On November 29, 2017, appellant’s counsel filed a motion to correct

record, requesting that the motion to suppress filed under case No. 2014 CR 0007, be

designated to case No. 2014 CR 0609.2

         {¶ 16} On July 16, 2018, a jury trial commenced and numerous witnesses testified.

The following is a summary of the testimony of relevant witnesses.

         {¶ 17} Parole Officer Peter Gale testified he was searching the home where

appellant lived and saw Robuck in appellant’s upstairs bedroom trying to hide a sizeable

amount of cocaine. Some pills were also discovered in appellant’s bedroom.

         {¶ 18} Police Detective Adam West testified while he was searching the home, he

walked up the stairs and saw Robuck concealing narcotics in a clothes basket. During the

search of the home, the basement, garage, laundry room, living room and appellant’s

room were examined and suspected marijuana, cocaine, prescription pills, a drug ledger

and cash were found. Appellant was detained and taken to the police station where he

admitted that the drugs belonged to him, he wanted to take responsibility for the drugs, he




2
    The trial court did not rule on this motion either, thus the motion is deemed denied.



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named the man who supplied the drugs, and he claimed Robuck had no knowledge of the

drugs.

         {¶ 19} Police Officer Danny Lewis testified he helped with the search of the

home, and took pictures of some of the objects which were found. Lewis took a picture

of a bag of cocaine which was located in a duffle bag or laundry bag by the closet in

appellant’s bedroom. Lewis thought some pills were also found in the bag. Lewis

located paperwork in appellant’s bedroom, including a ledger with references to Zip, a

slang term for cocaine, which is indicative of drug trafficking. The officer noticed men’s

and women’s clothes throughout the bedroom and closet.

         {¶ 20} Robuck testified that in December 2014, she was dating appellant and

living with him. The day the home was searched, she was upstairs and heard appellant

say his probation officer was there, so Robuck grabbed the drugs and tried to hide them

in the closet. Robuck admitted she was a drug addict at that time, with heroin being her

drug of choice, but she also used cocaine and marijuana. During the six months she lived

with appellant, Robuck saw drugs in the home, including cocaine and marijuana, and

appellant selling drugs, but she did not see appellant using drugs. Robuck cooperated

with and worked for the police in exchange for not being charged with tampering with

evidence.

         {¶ 21} Appellant testified that he sold drugs and marijuana, but he does not sell

cocaine. He said the cocaine belonged to Robuck. Appellant said the police detective

lied when he said appellant named the man who supplied the drugs, but the detective did




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not lie about appellant taking responsibility for the drugs in the home, although appellant

claimed he was coerced into saying that. Appellant said the police officer lied, Robuck

lied about him dealing drugs and the probation officer lied a little bit.

       {¶ 22} On July 18, 2018, appellant was found not guilty of Count 1, preparation of

cocaine for sale, guilty of Count 2, possession of cocaine, guilty of Count 3, aggravated

possession of drugs, and guilty of Count 4, possession of drugs.

       {¶ 23} On August 1, 2018, a sentencing hearing was held. Appellant was

sentenced to a mandatory term of four years in prison as to Count 2, ten months in prison

as to Count 3 and ten months in prison as to Count 4, with the sentences to run

concurrently with each other but consecutively to the sentence imposed in case No.

2014 CR 0007, for a total prison term of four years, 11 months. On August 3, 2018, the

court filed its judgment entry. Appellant timely appealed.

                            Assignment of Error Nos. 1 and 2

       {¶ 24} We will examine these assignments of error collectively, as appellant’s

arguments in support of these assignments are largely presented together.

       {¶ 25} In his first assignment of error, appellant argues the trial court erred in

denying his Crim.R. 29 motion to dismiss when it allowed items seized from Robuck to

be admitted. Appellant contends we should “reverse the trial court and order it to

suppress all [of] the evidence * * * seized from the shared/common bedroom, dresser,

closet and clothesbaskets of the third party resident, Holly Robuck, which was used to

convict [appellant]” as the items seized were outside of the scope of the waiver form.




9.
Appellant asserts Robuck did not give her consent to search, nor did she have the

apparent authority to give consent to search. Appellant further claims there is an

ambiguity as to whether the cocaine found in the shared bedroom belonged to him or

Robuck.

                                           Analysis

       {¶ 26} At the outset, we note appellant mentions in the caption of his first

assignment of error that the trial court erred in denying his Crim.R. 29 motion by

admitting items seized from Robuck. However, appellant fails to argue this point

anywhere in his brief, nor does he cite to any legal authority regarding Crim.R. 29.

       {¶ 27} App.R. 12(A)(2) provides “[t]he court may disregard an assignment of

error presented for review if the party raising it fails to identify in the record the error on

which the assignment of error is based or fails to argue the assignment separately in the

brief, as required under App.R. 16(A).” Thus, we decline to address the reference to

Crim.R. 29.

       {¶ 28} The arguments actually advanced by appellant in his brief concern the trial

court’s alleged error in admitting the items seized by police from the bedroom that

appellant and Robuck shared. Appellant acknowledges the probation officer and police

“executed a lawful warrantless search pursuant to the defendant-probationer’s consent to

conduct a residence check.” However, appellant submits “[a]n issue * * * is whether the

Consent Waiver of the Fourth Amendment Search, signed by a defendant/probationer,

can be extended to third parties who did not give their consent or have authority to




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consent * * * and whether such evidence obtained from the consent of a third party can

be used against [the] primary target, the defendant-probationer * * *.” Appellant asserts

since Robuck never gave her consent to search the common bedroom, dresser, closet and

clothes basket, all of the items seized by police from the shared bedroom must “be

suppressed as a warrantless search in violation of the Fourth Amendment to the U.S.

Constitution.”

       {¶ 29} A review of the record shows these arguments were not raised before the

trial court nor considered by the trial court. “It is well-settled law that issues not raised in

the trial court may not be raised for the first time on appeal because such issues are

deemed waived.” State v. Barrett, 10th Dist. Franklin No. 11AP-375, 2011-Ohio-4986,

¶ 13. See also State v. Allen, 6th Dist. Wood No. WD-16-058, 2018-Ohio-887, ¶ 25.

Accordingly, appellant’s first assignment of error is not well-taken.

       {¶ 30} In his second assignment of error, appellant argues “[i]n light of the

unconstitutionality of the admission of the bags of cocaine and other evidence found in

the common bedroom,” his trial counsel was ineffective in failing to file a motion to

suppress, and in stipulating to the admission of the state’s exhibit Nos. 3, 4 and 7.

Appellant asserts his trial counsel’s actions and inactions were deficient and substantially

prejudiced appellant.

                                          Standard

       {¶ 31} In order to prevail on a claim for ineffective assistance of counsel,

appellant must show trial counsel’s performance fell below an objective standard of




11.
reasonable representation and prejudice resulted from counsel’s deficient performance.

State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989), paragraph two of the

syllabus, following Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). Trial counsel is entitled to a strong presumption that his or her conduct falls

within the wide range of reasonable assistance. Strickland at 688.

       {¶ 32} Claims of ineffective assistance of counsel are not successful when trial

counsel’s failure to file a motion to suppress was a tactical decision, there was no

reasonable probability of success, or there was no prejudice. State v. Nields, 93 Ohio

St.3d 6, 34, 752 N.E.2d 859 (2001).

                                            Law

       {¶ 33} The Fourth Amendment to the United States Constitution guarantees that

individuals are to be free from unreasonable searches and seizures, and evidence obtained

in violation of this guarantee must be excluded in any criminal trial. See Mapp v. Ohio,

367 U.S. 643, 654-655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). A person on probation

has a reduced expectation of privacy, and “a court granting probation may impose

reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding

citizens.” United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497

(2001). A condition of probation may include the offender agreeing to submit to

warrantless searches, and “[w]hen an officer has reasonable suspicion that a probationer

subject to a search condition is engaged in criminal activity, there is enough likelihood




12.
that criminal conduct is occurring that an intrusion on the probationer’s significantly

diminished privacy interests is reasonable.” Id. at 119, 121.

       {¶ 34} Pursuant to R.C. 2951.02(A), a probation officer may search the

probationer, the probationer’s place of residence and “other real property * * * for which

the offender has the express or implied permission of a person with a right, title, or

interest to use, occupy, or possess.” However, when “a cotenant who is not on probation

shares a residence with a probationer, the warrantless probation search of the residence

must be limited to the common areas the probationer is known to occupy or have joint

control over.” State v. Norman, 2014-Ohio-5084, 21 N.E.3d 1153, ¶ 41 (12th Dist.).

       {¶ 35} There are also limits as to who may assert the right to suppress evidence

obtained in violation of the Fourth Amendment, and “suppression of the product of a

Fourth Amendment violation can be successfully urged only by those whose rights were

violated by the search itself.” Alderman v. U.S., 394 U.S. 165, 171-172, 89 S.Ct. 961, 22

L.Ed.2d 176 (1969). Further, “defendants charged with crimes of possession may only

claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in

fact been violated.” United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 65

L.Ed.2d 619 (1980). Thus, “Fourth Amendment rights are personal in nature and may

not be vicariously asserted by others.” State v. Dennis, 79 Ohio St.3d 421, 426, 683

N.E.2d 1096 (1997).

       {¶ 36} Here, appellant claims his trial counsel should have filed a motion to

suppress premised on a violation of Robuck’s Fourth Amendment rights. Since Fourth




13.
Amendment rights are personal and may not be vicariously asserted, appellant cannot

contest the legality of the search and seizure by alleging Robuck’s rights were violated.

As such, appellant’s trial counsel was not deficient in failing to file a motion to suppress

on this basis, because the motion would have been without merit and unsuccessful.

       {¶ 37} Appellant also asserts his trial counsel erred in stipulating to the admission

of exhibit Nos. 3, 4 and 7 as evidence at trial. Exhibit No. 3 is the cocaine seized at the

home, exhibit No. 4 includes the Ohio Bureau of Criminal Investigation (“BCI”)’s

Evidence Submission Sheet, Laboratory Report and Notarized Statement of BCI

employee, and exhibit No. 7 is a DVD of pictures taken of some of the items found at the

home. Appellant submits “[t]he admission of this evidence goes directly to the

defendant’s conviction on Count Two/Possession of Cocaine in the amount of 27.35

grams and the imposition of the four year mandatory prison sentence and $10,000 fine.”

However, appellant makes no argument that the evidence was otherwise inadmissible,

nor did he cite to any legal authority. Since appellant failed to comply with App.R.

16(A)(7), we decline to address this claim. See App.R. 12(A)(2).

       {¶ 38} Accordingly, appellant’s second assignment of error is not well-taken.

                               Third Assignment of Error

       {¶ 39} Appellant questions whether the trial court erred in admitting any evidence

obtained from appellant’s cellphone against him at trial. Appellant argues the probation

officer and police exceeded their authority granted by the waiver form “when they seized

his cellphone and its content, as evidence against him, without obtaining a warrant.”




14.
       {¶ 40} A review of the record shows no evidence obtained from appellant’s

cellphone was presented at trial. Further, appellant raises the issue regarding his

cellphone for the first time on appeal. As we noted above, “issue not raised in the trial

court may not be raised for the first time on appeal because such issues are deemed

waived.” Barrett, 10th Dist. Franklin No. 11AP-375, 2011-Ohio-4986, at ¶ 13.

Accordingly, appellant’s third assignment of error is not well-taken.

                              Fourth Assignment of Error

       {¶ 41} Appellant contends the trial court committed plain error when it did not

amend the written jury instructions on constructive possession over the objection of

defense counsel. Appellant asserts “the trial court’s omission that * * * Robuck and her

possessions were in the common bedroom she shared with the defendant-appellant failed

to clarify the issue of ‘reasonable doubt’ and ‘presumption of innocence doctrine.’”

Appellant submits the court’s verbal instructions to the jury on possession/constructive

possession did not cure the written instructions, and the court’s error was not harmless.

                                         Standard

       {¶ 42} “A trial court is obligated to provide jury instructions that correctly and

completely state the law. * * * The jury instructions must also be warranted by the

evidence presented in a case. * * * The question of whether a jury instruction is legally

correct and factually warranted is subject to de novo review.” (Citations omitted.)

Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29

N.E.3d 921, ¶ 22.




15.
                                         Analysis

       {¶ 43} A review of the record shows the trial court read the written jury

instructions to the jurors, including:

              All right. The Defendant is presumed innocent until his guilt is

       established beyond a reasonable doubt. The Defendant must be acquitted,

       unless the State produces evidence which convinces you beyond a

       reasonable doubt of every essential element of the crime charged in the

       indictment.

              Reasonable Doubt. Reasonable doubt is present when, the jurors,

       after they have carefully considered and compared all [of] the evidence,

       cannot say they are firmly convinced of the truth of the charge. It is doubt

       based on reason and common sense. Reasonable doubt is not mere possible

       doubt, because everything relating to human affairs or depending upon

       moral evidence is open to some possible or imaginary doubt.

              Proof beyond a reasonable doubt is proof of such character that an

       ordinary person would be willing to rely and act upon it in the most

       important of their own affairs.

              Possess. Possess means having control over a thing or substance

       through ownership or occupation of the premises upon which the thing or

       substance is found.




16.
              Constructive possession. Constructive possession exists when an

       individual knowingly exercises dominion and control over an object even

       though that object may not be in immediate possession. For constructive

       possession to exist it must also be shown that the person was conscious of

       the object. Dominion and control, as well as whether a person was

       conscious of the presence of an item of contraband may be established by

       circumstantial evidence, although a Defendant’s mere proximity in and of

       itself is insufficient to establish constructive possession.

       {¶ 44} Thereafter, the state noticed the written jury instructions set forth a

definition for constructive possession for Count 2 of the indictment, but there was no

mention of constructive possession under the jury instructions for Counts 3 and 4. The

state advised the court of the omission and informed the court that the constructive

possession instruction applied to Counts 2, 3 and 4. The judge offered to tell the jury that

constructive possession was applicable to every count, and the state agreed, but defense

counsel objected, stating:

              [w]e would object to the instruction of Possession on Page 10,

       Constructive Possession, I guess specifically with respect to the specific

       instruction for Constructive Possession as it’s used to show that the person

       was conscious of the presence of marijuana. * * * As far as the count of

       Aggravated Possession, my understanding [is that] counsel is requesting

       that Constructive Possession also be applied to that and I’m objecting to




17.
       * * * Possession and Constructive Possession as to Counts * * * Two,

       Three, and Four.

       {¶ 45} The objection was overruled, and the court verbally instructed the jury that

“Constructive Possession definition that’s in the jury instructions on Page 10 applies to

each Count, okay? So if you’re hung up on Constructive Possession, please refer to Page

10.”

       {¶ 46} R.C. 2901.05(A) sets forth the presumption of evidence doctrine: “[e]very

person accused of an offense is presumed innocent until proven guilty beyond a

reasonable doubt, and the burden of proof for all elements of the offense is upon the

prosecution.” And, R.C. 2901.05(E) provides the definition of reasonable doubt.

       {¶ 47} In State v. Fykes, 6th Dist. Wood No. WD-07-072, 2009-Ohio-2926, ¶ 35-

36, we stated:

                 “‘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).

                 Possession [of an object] may be actual or constructive. State v.

       Kingsland, 177 Ohio App.3d 655, 895 N.E.2d 633, 2008-Ohio-4148, ¶ 13.

       Actual possession occurs when the defendant “had the items within his

       immediate physical control.” State v. Jones, 10th Dist. Nos. 07AP977,

       07AP-978, 2008-Ohio-3765, ¶ 13. Constructive possession occurs when




18.
       the defendant is able to exercise dominion control over an item, even if the

       individual does not have the item within his immediate physical possession.

       Kingsland, supra. In order for constructive possession to exist, there must

       be evidence demonstrating that the defendant was conscious of the presence

       of the object. Id. Although a defendant’s mere proximity to an item is in

       itself insufficient to establish constructive possession, proximity to the item

       may constitute some evidence of constructive possession. Id. “Thus,

       presence in the vicinity of contraband, coupled with another factor or

       factors probative of dominion or control over the contraband, may establish

       constructive possession.” Id.

       {¶ 48} Here, a comparison of the relevant law to the jury instructions given by the

trial court on the presumption of innocence doctrine and reasonable doubt indicates the

court correctly stated the law.

       {¶ 49} In addition, we find there was sufficient evidence in the record to warrant

jury instructions on possess and constructive possession in Counts 2, 3 and 4. The

evidence includes: (1) Parole Officer Gale’s testimony that pills were found in

appellant’s bedroom, as was the cocaine, which Robuck was trying to hide; (2) Detective

Lewis’ testimony that suspected marijuana, cocaine, prescription pills, a drug ledger and

cash were found in the home and appellant admitted that the drugs belonged to him,

named the man who supplied the drugs, and said Robuck had no knowledge of the drugs;




19.
and (3) Robuck’s testimony that during the time she lived with appellant she saw drugs in

the home and she saw appellant selling drugs.

       {¶ 50} Further, a comparison of the relevant law to the jury instructions given by

the trial court on possess and constructive possession indicates the court correctly stated

the law.

       {¶ 51} Accordingly, appellant’s fourth assignment of error is not well-taken.

       {¶ 52} Having found the trial court did not commit error prejudicial to appellant,

the judgment of the Erie County Court of Common Pleas is affirmed. Pursuant to App.R.

24, appellant is hereby ordered to pay the court costs incurred on appeal.


                                                                        Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Gene A. Zmuda, J.                                           JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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