State v. Boring

2011 Ohio 1501

• Court: Ohio Court of Appeals
• Decided: March 28, 2011
• Docket: 10CAA050035
• Status: Published

Opinion

[Cite as State v. Boring, 2011-Ohio-1501.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J. -vs- Case No. 10CAA050035 COREY C.E. BORING

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 09 CR I 04 0232

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 28, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DAVID A. YOST JOHN R. CORNELY Delaware County Prosecuting Attorney 21 Middle Street P.O. Box 248 By: BRENDAN M. INSCHO Galena, Ohio 43021-0248 Assistant Prosecuting Attorney 140 North Sandusky Street Third Floor Delaware, Ohio 43015 Delaware County, Case No. 10CAA050035 2

Hoffman, P.J.

{¶1} Defendant-appellant Corey Boring appeals his conviction entered by the

Delaware County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On January 13, 2009, Patrolman Mark Jackson of the Delaware Police

Department observed Appellant outside of Clancy’s Bar throw a punch at another

person. Appellant stopped after seeing Patrolman Jackson, and walked way.

{¶3} Patrolman Jackson approached Appellant, and questioned him regarding

the incident. Following a check of Appellant’s personal information, Patrolman Jackson

learned of a warrant for Appellant’s arrest, and placed him under arrest.

{¶4} Incidental to the arrest, Patrolman Jackson searched Appellant and found

a black pill bottle in Appellant’s pocket with a white residue inside. The white residue

was later determined to be cocaine.

{¶5} Appellant was indicted on one count of possession of cocaine, in violation

of R.C. 2925.11(A). Following a jury trial, Appellant was convicted of the charge, and

sentenced to a three year term of community control sanctions. Appellant now appeals,

assigning as error:

{¶6} “I. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT’S

CRIMINAL RULE 29 MOTION FOR ACQUITTAL, AS THE STATE OF OHIO FAILED

TO PRODUCE SUFFICIENT EVIDENCE APPELLANT KNOWINGLY POSSESSED

COCAINE.

{¶7} “II. APPELLANT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.” Delaware County, Case No. 10CAA050035 3

{¶8} Appellant’s assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

{¶9} In determining whether a trial court erred in overruling an appellant's

motion for judgment of acquittal, the reviewing court focuses on the sufficiency of the

evidence. See, e.g., State v. Carter (1995), 72 Ohio St.3d 545, 553, 651 N.E.2d 965,

974; State v. Jenks (1991), 61 Ohio St.3d 259 at 273, 574 N.E.2d 492 at 503.

{¶10} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. See State v.

Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541, 546 (stating, “sufficiency is

the test of adequacy”); State v. Jenks (1991), 61 Ohio St.3d 259 at 273, 574 N.E.2d 492

at 503. The standard of review is whether, after viewing the probative evidence and

inferences reasonably drawn therefrom in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560; Jenks, 61 Ohio St.3d at 273, 574 N.E.2d at 503.

{¶11} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Wilson, 713 Ohio St.3d 382, 387-88, 2007-Ohio-2202 at ¶ 25-26, 865 N.E.2d

1264, 1269-1270. An appellate court may not merely substitute its view for that of the

jury, but must find “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.” State v.

Thompkins, supra, 78 Ohio St.3d at 387, 678 N.E.2d 541. (Quoting State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720-721). Accordingly, reversal on Delaware County, Case No. 10CAA050035 4

manifest weight grounds is reserved for “the exceptional case in which the evidence

weighs heavily against the conviction.” State v. Thompkins, supra.

{¶12} Appellant maintains the State failed to produce evidence he knowingly

possessed cocaine. Appellant asserts he obtained the black pill bottle from a friend,

who had used it prior to his receiving it, and he never kept cocaine in the bottle and was

unaware of the residue.

{¶13} R.C. 2925.11, reads:

{¶14} “(A) No person shall knowingly obtain, possess, or use a controlled

substance.”

{¶15} Whether a person acts knowingly can only be determined from all the

facts and circumstances surrounding the act. State v. Lenoir 2010-Ohio-4910. A

determination of the weight and the credibility to be given to witness testimony are

issues for the trier of fact, namely for the jury. State v. Belger 2011-Ohio-980; United

States v. Scheffer (1997), 523 U.S. 303.

{¶16} Appellant testified at trial he had sole possession of the pill bottle for at

least three months prior to his arrest. The arresting officer testified the white powder

was clearly visible inside the black pill bottle, and the substance later tested positive as

cocaine. Based upon the above, we find Appellant’s conviction is supported by the

sufficiency of the evidence and is not against the manifest weight of the evidence.

Appellant’s assigned errors are overruled. Delaware County, Case No. 10CAA050035 5

{¶17} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Edwards, J. and

Delaney, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS

s/ Patricia A. Delaney ________________ HON. PATRICIA A. DELANEY Delaware County, Case No. 10CAA050035 6

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : COREY C.E. BORING : : Defendant-Appellant : Case No. 10CAA050035

For the reasons stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs to Appellant.

s/ William B. Hoffman ________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY