[Cite as State v. Wood, 2013-Ohio-5802.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                        C.A. No.      26820

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ANGELO D. WOOD                                       COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 12 10 2808

                                 DECISION AND JOURNAL ENTRY

Dated: December 31, 2013



        HENSAL, Judge.

        {¶1}    Appellant, Angelo D. Wood, appeals from his convictions in the Summit County

Court of Common Pleas. For the following reasons, this Court affirms.

                                                I.

        {¶2}    Mr. Wood’s girlfriend, Jessica Jackson, called the Akron police for assistance in

retrieving her personal property from a home she rented with him. She lived with her mother at

the time, but spent some nights at the home with Mr. Wood. Ms. Jackson alleged that she and

Mr. Wood were arguing that day and she was concerned that he was going to become physically

violent toward her. When the police arrived and asked her if there were any weapons in the

home, Ms. Jackson replied that Mr. Wood had a gun and drugs inside. She told the police where

the gun and drugs were located in the home. Ms. Jackson agreed that the police could search the

home, and signed a form confirming her consent. The search revealed a bag of crack cocaine,
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digital scales, razor blades, plates with crack cocaine residue, a 9 mm handgun, magazines for

the gun, and ammunition.

          {¶3}   Mr. Wood was indicted by the Grand Jury for one count of having weapons while

under disability, a violation of R.C. 2923.13(A)(3), possession of cocaine, a violation of R.C.

2925.11(A), (C)(4), and domestic violence, a violation of R.C. 2919.25(A).             The matter

proceeded to trial, and the jury found Mr. Wood guilty of having weapons under disability and

possession of cocaine. He was acquitted of the domestic violence charge. The trial court

sentenced Mr. Wood to a total of two years in prison.

          {¶4}   He filed a timely appeal and raises one assignment of error for this Court’s

review.

                                                 II.

                                    ASSIGNMENT OF ERROR

          APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A
          FAIR TRIAL WHEN THE PROSECUTOR COMMITTED MISCONDUCT BY
          ELICITING INADMISSIBLE AND HIGHLY PREJUDICIAL TESTIMONY, IN
          VIOLATION OF APPELLANT’S RIGHTS UNDER THE FIFTH, SIXTH AND
          FOURTEENTH     AMENDMENTS     TO    THE   UNITED    STATES
          CONSTITUTION, ARTICLE ONE, SECTION TEN OF THE OHIO
          CONSTITUTION, AND RULE 16 OF THE OHIO RULES OF CRIMINAL
          PROCEDURE.

          {¶5}   Mr. Wood argues that he was deprived of a fair trial because of prosecutorial

misconduct. This Court disagrees.

          {¶6}   “The test for prosecutorial misconduct is whether remarks are improper and, if so,

whether they prejudicially affected substantial rights of the accused.” State v. Lott, 51 Ohio St.

3d 160, 165 (1990). “[A] judgment may only be reversed for prosecutorial misconduct when the

improper conduct deprives the defendant of a fair trial.” State v. Carano, 9th Dist. Summit No.

26544, 2013-Ohio-1633, ¶ 20, quoting State v. Knight, 9th Dist. Lorain No. 03CA008239, 2004–
                                                  3


Ohio–1227, ¶ 6. “The defendant must show that there is a reasonable probability that but for the

prosecutor’s misconduct, the result of the proceedings would have been different.” State v. Veal,

9th Dist. Summit No. 26005, 2012-Ohio-3555, ¶ 17, citing State v. Loza, 71 Ohio St.3d 61, 78

(1994). “The touchstone of the analysis ‘is the fairness of the trial, not the culpability of the

prosecutor.’” State v. Diar, 120 Ohio St.3d 460, 2008–Ohio–6266, ¶ 140, quoting Smith v.

Phillips, 455 U.S. 209, 219 (1982).

       {¶7}    Mr. Wood argues that the prosecutor elicited irrelevant testimony from Ms.

Jackson about the purpose of the drug paraphernalia that suggested he sold drugs. He was not

charged with drug trafficking; but rather, drug possession. He contends that such questioning

was “clearly designed” to disparage his character.

       {¶8}    The prosecutor asked Ms. Jackson about the purpose of a digital scale that was

found in the home. Over objection, she replied that it was used to weigh drugs. The prosecutor

next inquired, also over objection, if she had observed Mr. Wood use a razor blade and kitchen

plate that were discovered during the search. Ms. Jackson responded in the affirmative. When

the prosecutor asked her what the items were used for, she testified that Mr. Wood used the items

to “chop down” pieces of crack cocaine. Mr. Wood did not object to the prosecutor’s question

about the purpose of the plate and razor blade.

       {¶9}    The prosecutor’s questions about the purpose of the scale, plate and razor blade

were not improper. Mr. Wood was charged with drug possession under R.C. 2925.11(A), which

provides that “no person shall knowingly obtain, possess, or use a controlled substance * * *.”

To “[p]ossess” is defined as “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). Thus, the State could
                                                 4


not rely solely on the fact that Mr. Wood resided at the home to establish that he possessed the

drugs. It also had to prove that he had control over the drugs. Id.; State v. Carlton, 9th Dist.

Lorain No. 12CA010219, 2013-Ohio-2788, ¶ 11 (“We have also recognized that ‘the crucial

issue is not whether the accused had actual physical contact with the article concerned, but

whether the accused was capable of exercising dominion [and] control over it.’”), quoting State

v. Reis, 9th Dist. Summit No. 26237, 2012-Ohio-2482, ¶ 7. Ms. Jackson’s testimony, if believed,

established that Mr. Wood exerted “dominion and control” over the drugs as he used the scale,

plate and razor blades to physically handle the drugs when he weighed them and “chop[ped]

[them] down.” Reis at ¶ 7.

       {¶10} In addition, the prosecutor played a recording of a jailhouse telephone call

between Ms. Jackson and Mr. Wood wherein he remarked that the police would not have

evidence of a “buy” at the home. The prosecutor asked Ms. Jackson, “What does buy mean?”

Ms. Jackson testified that it was her understanding that “when police are * * * going after people

that sell drugs * * * they have to get a buy from somebody in order to go after them[.]* * *

[W]hat he’s saying to me, they did not have actually a sale from like an undercover officer * * *

from Mr. Wood * * *.” Mr. Wood did not object to either the recording or the question to Ms.

Jackson about what a “buy” meant.

       {¶11} Because Mr. Wood did not object to either the call or the subsequent follow up

question from the prosecutor, “he limits appellate review to that of plain error.” State v.

Novotny, 9th Dist. Summit No. 26526, 2013-Ohio-2321, ¶ 16. Crim.R. 52(B) states that “[p]lain

errors or defects affecting substantial rights may be noticed although they were not brought to

the attention of the court.” “As notice of plain error is to be taken with utmost caution and only

to prevent a manifest miscarriage of justice, the decision of a trial court will not be reversed due
                                                5


to plain error unless the defendant has established that the outcome of the trial clearly would

have been different but for the alleged error.” Veal, 2012-Ohio-3555, at ¶ 18. However, Mr.

Wood does not argue plain error in his brief, and this Court declines to create such an argument

on his behalf sua sponte. State v. Griffin, 9th Dist. Lorain No. 11CA010128, 2013-Ohio-416, ¶

37.

       {¶12} In addition, this Court notes that, although not specifically cited by Mr. Wood in

his appellate brief, Akron Police officer William Lagasse also testified about the purpose of the

drug paraphernalia. The prosecutor asked him, “[b]ased on your training and experience, can

you explain to the jury what the significance is of these digital scales as it relates to the

possession of cocaine?” Over objection, Officer Lagasse testified that the scales, kitchen plate

and razor blade “indicate[ ] that someone is cutting up the cocaine and is measuring the cocaine

out [and] packaging the cocaine[.]” Mr. Wood’s counsel again objected, which was overruled by

the trial court. Officer Lagasse continued his testimony: “And then in my opinion as well,

would be an indication of someone that is selling cocaine and trafficking the cocaine.” Upon

objection, the trial court instructed the jury that “[Mr. Wood] is not charged with trafficking or

selling. He is only accused of possessing cocaine. So you’re not to consider that as evidence,

that he is a drug trafficker or trafficking the cocaine. He is only charged with possession of

cocaine. So you are to disregard that answer and consider it only for purpose of the charge of

possession of cocaine.”   The prosecutor then asked Officer Lagasse what it means to cut up the

cocaine. Mr. Wood’s counsel objected, but the trial court stated that it would consider the

objection after it heard Officer Lagasse’s testimony. He testified that, “[a]s it relates to the

cocaine, it means that the cocaine was bought maybe in a bigger bag, it was put on [a] plate, it

was cut up in lines to be used, or in smaller pieces to be resold.” The Court sustained the
                                                  6


objection, and instructed the jury that “[it was] not to consider this testimony as any evidence of

drug trafficking. [Mr. Wood] is not charged with drug trafficking. He is only charged with

possession of cocaine.”

       {¶13} Thus, the trial court instructed the jury on two occasions to limit its consideration

of the evidence suggesting the sale of the drugs in light of the fact that Mr. Wood was charged

only with possession of cocaine and not drug trafficking. “Juries are presumed to follow the

court’s instructions, including instructions to disregard testimony.” State v. Johnson, 71 Ohio

St.3d 332, 340 (1994). Accordingly, even if this Court were to conclude that the prosecutor’s

conduct was improper, Mr. Wood has failed to demonstrate how his substantial rights were

prejudicially affected given the limiting instructions from the trial court.

       {¶14} Mr. Wood further argues that the prosecutor elicited testimony from Ms. Jackson

about prior alleged physical altercations with him that was also designed to reflect negatively on

his character. However, the portions of the transcript he cites pertain to questions asked by

defense counsel rather than the prosecutor.

       {¶15} Mr. Wood has failed to persuade us that any prosecutorial misconduct occurred

during the trial. Accordingly, this Court cannot conclude that he was deprived of his right to a

fair trial. Mr. Wood’s assignment of error is overruled.

                                                 III.

       {¶16} Mr. Wood’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.
                                                 7


       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



WHITMORE, J.
CONCURS.

CARR, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶17} I concur in the majority’s judgment, as I would overrule Wood’s sole assignment

of error. I would construe Wood’s assignment of error, however, as a challenge to the trial

court’s admission of certain evidence and the alleged inadequacy of certain limiting instructions.

Wood may not attack the admission of evidence by way of an allegation of prosecutorial

misconduct. See State v. Pleban, 9th Dist. Lorain No. 10CA009789, 2011-Ohio-3254, ¶ 40-41.

Accordingly, I would affirm his conviction on that basis.
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APPEARANCES:

ADAM VAN HO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
