[Cite as State v. Bursey, 2021-Ohio-2857.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28976 : v. : Trial Court Case No. 2019-CR-3539 : CHARLES E. BURSEY, III : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 20th day of August, 2021.
MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066 Attorney for Defendant-Appellant
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TUCKER, P.J. -2-
{¶ 1} Defendant-appellant Charles E. Bursey, III appeals from his convictions for
having weapons under disability and possession of drugs. Bursey claims the convictions
were not supported by sufficient evidence and were against the manifest weight of the
evidence. He further claims that the trial court erred by overruling his motion to suppress
and abused its discretion regarding the admission of evidence. Finally, Bursey contends
his trial counsel was ineffective.
{¶ 2} Because we find no merit to Bursey’s arguments, the judgment of the trial
court is affirmed.
I. Facts and Procedural History
{¶ 3} On September 6, 2019, Trotwood Police Officer Roger Hoff travelled to
Sheikhs Bar and Grill to perform a permit check, which he described as a routine check
frequently done by the police department to ensure that local bars are in compliance with
their permits and to deter illegal activity. Hoff parked his cruiser in the tavern’s parking
lot and walked toward the entrance to the bar. At that time, he noticed a Jeep that was
backed into a parking spot but still running. As he passed the front of the Jeep, Hoff
observed a man lying back with his head slumped forward and his eyes closed. The
man, later identified as Bursey, appeared to be asleep or possibly unconscious. Hoff
shined his flashlight through the windshield, but Bursey did not react.
{¶ 4} Hoff then went to the back of the car and called in the license plate number
for a vehicle check. He also called for backup. Hoff then went to the passenger window
to determine whether the car was in park and whether Bursey’s foot was on the brake.
As Hoff shined his flashlight through the passenger window, he noted Bursey still failed -3-
to react. Hoff also observed a Glock handgun with an extended magazine in Bursey’s
lap.
{¶ 5} Hoff moved toward another vehicle and positioned himself so that he would
not be harmed if the Jeep moved or the gun discharged. As backup arrived, Hoff noted
Bursey began to move. Hoff observed Bursey leaning forward and down as if attempting
to conceal something. Bursey was exiting the car when he noticed Hoff and the other
officers, all of whom had their service weapons drawn. Bursey complied with instructions
to keep his hands visible. One of the assisting officers placed handcuffs on Bursey.
When Hoff approached the vehicle, he smelled the odor of marijuana emanating from
within. No other occupants were in the car.
{¶ 6} A search of the Jeep was conducted. The gun, with an inserted magazine,
was located under the front driver’s seat. The gun had a bullet loaded in the chamber,
and the magazine contained 31 rounds of ammunition. The gun was later determined to
be fully operable. Clear gel caps, which Hoff suspected contained heroin, were located
in the driver’s side door compartment and the glove box. The substance in the capsules
was tested by a forensic scientist employed by the Ohio Bureau of Criminal Investigation
(BCI). All of the capsules contained heroin and fentanyl. One of the capsules also
contained cocaine. Sixteen of the capsules also contained acetyl fentanyl.
{¶ 7} On December 3, 2019, Bursey was indicted on one count of having weapons
under disability in violation of R.C. 2923.13(A)(3), one count of improper handling of a
firearm in a motor vehicle in violation of R.C. 2923.16(B), one count of possession of a
fentanyl-related compound in violation of R.C. 2925.11(A), one count of possession of
heroin (10-50 unit dose) in violation of R.C. 2925.11(A), and one count of possession of -4-
cocaine (less than 5 grams) in violation of R.C. 2925.11(A). Bursey filed a motion to
suppress evidence in January 2020. Following a hearing, the trial court denied the
motion.
{¶ 8} The matter proceeded to trial in October 2020. Hoff testified to the above-
cited facts, while the forensic scientist who tested the capsules provided testimony
regarding her testing and the results thereof. Further, the State presented the testimony
of a criminal investigator who testified regarding recorded telephone calls made by Bursey
while he was in jail awaiting trial.
{¶ 9} Bursey also testified at trial. According to Bursey, he had been in the Jeep
with friends during the course of the day prior to going to Sheikhs. Bursey testified that
his girlfriend had been driving. He testified that they parked at the bar and the others
went inside. However, Bursey testified that he was feeling drowsy and decided to remain
in the vehicle; he began to get hot so he crawled into the driver’s seat and turned the
Jeep on so that the vehicle’s air conditioner could be activated. Bursey testified that he
fell asleep but had awakened and was exiting the Jeep to go into the bar when the police
officers confronted him.
{¶ 10} Bursey further testified that the Jeep did not belong to him and he did not
have a gun in his lap when he fell asleep in the vehicle. Bursey testified that he normally
keeps his two cellphones in his lap whenever he is sitting in a car, and that Hoff may have
seen the phones and thought they were a gun. However, Bursey admitted that he did
not remember whether the phones were actually in his lap at that time.
{¶ 11} Following the trial, the jury convicted Bursey on all the charges except for
the charge of improper handling of a firearm in a motor vehicle. The trial court sentenced -5-
him to an aggregate prison term of 12 months.
{¶ 12} Bursey appeals.
II. Motion to Suppress
{¶ 13} In his first assignment of error, Bursey asserts:
THE TRIAL COURT ERRED WHEN IT OVERRULED BURSEY’S MOTION
TO SUPPRESS THE EVIDENCE.
{¶ 14} “Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial
court's findings of fact if they are supported by competent, credible evidence. * * *
Accepting these facts as true, the appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard.” (Citations omitted.) Id.
{¶ 15} The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968). Warrantless searches and seizures violate this prohibition unless
conducted pursuant to one of the “few specifically established and well-delineated
exceptions.” (Citations omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507,
19 L.Ed.2d 576 (1967).
{¶ 16} One of those exceptions is the plain view doctrine, which permits a -6-
warrantless seizure of incriminating evidence when “(1) the officers are lawfully positioned
in a place from which the object can be plainly viewed, (2) the incriminating character of
the object is immediately apparent, and (3) the officer has a lawful right of access to the
object itself.” State v. Garrett, 2d Dist. No. 27630, 2018-Ohio-4530, 123 N.E.3d 327,
¶ 22, quoting State v. Goode, 2d Dist. Montgomery No. 25175, 2013-Ohio-958, ¶ 26,
citing Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)
and Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).
{¶ 17} In this case, there is no doubt that Hoff was lawfully permitted to view the
interior of the Jeep. As Hoff was walking through the parking lot toward the entrance of
the bar, he glanced into the front of the Jeep and noted that the lone, male occupant
appeared to be either asleep or unconscious while the vehicle was running. Hoff then
shined his flashlight, which he described as being more powerful than average, through
the windshield and noted that Bursey did not react. Hoff decided to conduct a check on
Bursey to make sure he was not unconscious due to a medical problem or intoxication.
Hoff also testified that he had a concern for the general safety of the public because
Bursey appeared to be asleep or unconscious in a running car in a parking lot; Hoff
wanted to look in the passenger window to ensure the vehicle was in park. When Hoff
again shined his flashlight and looked in the passenger window, he again noted that
Bursey did not react.1 He further observed what he recognized as a Glock firearm with
1 Hoff used a flashlight to illuminate the interior of the vehicle. But “use of a flashlight by a police officer does not negate the fact that an item is otherwise in plain view or that its discovery is inadvertent.” State v. White, 2d Dist. Montgomery No. 18731, 2002 WL 63294, *5 (Jan. 18, 2002), quoting State v. Ward, 2d Dist. Montgomery No. 14186, 1994 WL 645964 (Nov. 16, 1994); Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). -7-
an extended magazine in Bursey’s lap. 2 At this point, Hoff was outside of Bursey’s
vehicle in a place he was permitted to be, conducting a brief check on Bursey’s well-being
and ensuring the safety of the general public. This minimal intrusion, if any, was
legitimate, and it created a sufficient basis to permit Hoff to investigate further.
{¶ 18} Hoff testified that, after he observed Bursey’s failure to react to the flashlight
and the handgun in Bursey’s lap, he wanted to investigate whether Bursey was violating
R.C. 4511.194(B)(2), which provides that “[n]o person shall be in physical control of a
vehicle * * * if, at the time of the physical control, * * * [t]he person's whole blood, blood
serum or plasma, breath, or urine contains at least the concentration of alcohol specified
in division (A)(1)(b), (c), (d), or (e) of section 4511.19 of the Revised Code.” “ ‘Physical
control’ means being in the driver's position of the front seat of a vehicle * * * and having
possession of the vehicle's * * * ignition key or other ignition device.” R.C.
4511.194(A)(2). Hoff also testified that Bursey’s possession of the gun raised an issue
as to whether Bursey was in violation of R.C. 2923.16(B), which states, “[n]o person shall
knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the
firearm is accessible to the operator or any passenger without leaving the vehicle.”
{¶ 19} Another of the recognized exceptions to the warrant requirement is an
investigative detention, commonly referred to as the Terry stop. Under Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer may detain an individual
without probable cause when the officer has reasonable suspicion, based on specific,
articulable facts, that criminal activity is afoot. Id. at 21. Reasonable suspicion entails
2 Hoff testified he is a certified firearms instructor and has more than 300 hours of firearm training in addition to his regular training. -8-
some minimal level of objective justification, “that is, something more than an inchoate
and unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for
probable cause.” State v. Jones, 70 Ohio App.3d 554, 556-557, 591 N.E.2d 810 (2d
Dist.1990), citing Terry at 27. Upon observing Bursey asleep or unconscious with what
appeared to be a loaded handgun in the parking lot of a bar, Hoff had reasonable
suspicion, at the very least, to conduct a Terry investigative detention.
{¶ 20} As stated, as backup officers arrived, Bursey began to move around inside
the vehicle, and he moved in such a manner as to cause Hoff to think he was attempting
to conceal something. Bursey then exited the car of his own accord before noticing the
officers. According to Hoff, when he approached the Jeep, he noted the smell of
marijuana emanating from within it.3 The odor of marijuana provided both suspicion that
Bursey, who was the only occupant, was in possession of marijuana and that the
contraband was located in the vehicle. “The smell of marijuana, alone, by a person
qualified to recognize the odor, is sufficient to establish probable cause to conduct a
search.” State v. Moore, 90 Ohio St.3d 47, 51, 734 N.E.2d 804 (2000), syllabus.
{¶ 21} Based upon the record before us, we conclude that the trial court did not err
in finding that Hoff’s search of the vehicle was legally permitted. The plain-view
observation of the handgun on Bursey’s lap, as well as the observation that Bursey was
non-responsive in a bar parking lot, established probable cause to enter the vehicle to
seize the gun. However, before Hoff could do so, Bursey exited the vehicle of his own
accord. When Hoff approached the Jeep, he smelled marijuana, which established
3 Hoff testified that he is familiar with the smell of both raw and burned marijuana as a result of his involvement with multiple law enforcement task forces. The trial court specifically found Hoff’s testimony credible, and we find no basis to disagree. -9-
probable cause to search the vehicle.
{¶ 22} Accordingly, the first assignment of error is overruled.
III. Evidentiary Issues
{¶ 23} Bursey’s second assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED
THE PHOTOS, DRUGS, AND THE JAIL CALLS AT TRIAL.
{¶ 24} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Williams, 2d Dist. Montgomery No. 26369, 2016-
Ohio-322, ¶ 17, quoting State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987).
Thus, a trial court’s decision regarding the admissibility of evidence will not be reversed
on appeal absent an abuse of discretion. O'Brien v. Angley, 63 Ohio St.2d 159, 163, 407
N.E.2d 490 (1980). The term “abuse of discretion” implies an attitude on the part of the
trial court that is arbitrary, capricious or unconscionable. AAAA Ents., Inc. v. River Place
Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 25} Bursey first asserts that the trial court erred by admitting photographs taken
by Hoff which depicted the interior of the Jeep and the evidence collected therein.
Bursey’s main complaints are that the photographs of the Jeep’s interior were taken after
the contraband was removed and that the pictures of that contraband show it laid neatly
on what appears to be a desk or a table. He further claims Hoff had “difficulty” explaining
where the contraband was located. Bursey argues this “may [have] confuse[d] the issue
of constructive possession.” Bursey also contends that, because the actual drugs and -10-
gun were shown to the jury, the photographs were unnecessarily cumulative and
prejudicial.
{¶ 26} In accord with Evid.R. 403, a trial court may exclude evidence when its
probative value is “substantially outweighed by considerations of undue delay or needless
presentation of cumulative evidence. The mere fact that evidence is repetitive will not
be considered reversible error unless the defendant was unfairly prejudiced thereby.”
(Citations omitted.) State v. Baker, 2d Dist. Montgomery No. 23933, 2011-Ohio-1820,
¶ 16. “The pertinent question is whether the evidence was unfairly prejudicial to the
defendant, not whether it was unfavorable to him.” Id.
{¶ 27} In this case, photos showing the interior of the Jeep were relevant to Hoff’s
testimony regarding the location of the gun and drugs. The photos also helped to
establish the issues of Hoff’s proximity to, and the accessibility of, the gun and drugs,
issues relevant to constructive possession. We find no merit in the claim that Hoff had
difficulty explaining the photos, and we find no basis for concluding the photos were likely
to confuse the jury regarding the issue of constructive possession. Hoff explained that
the photos were merely of the Jeep’s interior; he did not claim they showed the gun or
drug capsules prior to their removal from the Jeep. Further, although the introduction of
the photos of the gun and drug capsules was cumulative in that the actual gun and drugs
were introduced at trial, we cannot say, and Bursey does not explain, how this resulted in
any unfair prejudice. Therefore, we conclude the trial court did not abuse its discretion
by allowing the introduction of the photographs.
{¶ 28} Bursey next asserts that the State failed to establish a proper chain of
custody regarding the drug capsules. Specifically, he claims that although the capsules -11-
were properly placed in the police property room by Hoff, there was no evidence
presented regarding how the capsules were conveyed to the BCI laboratory for testing.
Thus, he contends that “alterations, substitution and tampering could have taken place.”
{¶ 29} “Although the state bears the burden of establishing a proper chain of
custody, that duty is not absolute.” State v. Blevins, 36 Ohio App.3d 147, 150, 521
N.E.2d 1105 (10th Dist.1987), citing State v. Moore, 47 Ohio App.2d 181, 353 N.E.2d 866
(9th Dist.1973). “The state need only establish that it is reasonably certain that
substitution, alteration or tampering did not occur.” Id. “Moreover, a chain of custody
can be established by direct testimony or by inference.” In re Lemons, 77 Ohio App.3d
691, 693, 603 N.E.2d 315 (8th Dist.1991), citing State v. Conley, 32 Ohio App.2d 54, 60,
288 N.E.2d 296 (3rd Dist.1971). “The issue of whether there exists a break in the chain
of custody is a determination left up to the trier of fact.” Id., citing Columbus v. Marks,
118 Ohio App. 359, 194 N.E.2d 791 (10th Dist.1963). “Any breaks in the chain of custody
go to the weight afforded to the evidence, not to its admissibility.” Id.
{¶ 30} Hoff testified that he placed the capsules in packaging which he sealed and
initialed. He also placed an evidence tag on the package, which he identified as having
his writing. The forensic scientist who then tested the capsules at the BCI lab testified
that the evidence package was sealed when she received it for testing. She also testified
that, when evidence comes into BCI, it is given a barcode with its own case number and
item number. Both Hoff and the scientist testified that the capsules admitted at trial were
in the packaging sealed and sent to BCI.
{¶ 31} Based upon this evidence, we conclude that although the State did not
present direct evidence of the chain of custody regarding who transported the capsules -12-
to BCI from the police property room, the trial court reasonably inferred that the capsules
that were tested had not been compromised. Thus, the trial court did not abuse its
discretion in admitting the capsules and the testimony regarding those capsules and their
contents.
{¶ 32} Finally, Bursey asserts that the trial court erred in admitting recordings
purporting to be telephone conversations Bursey had while in jail. The record shows the
State presented the testimony of its investigator, Tyson Dillon, who testified that the
Montgomery County Jail uses the Pay Tel communication system to record outgoing calls
made by inmates. He testified that the system tracks the inmates’ numbers and any calls
they make. The system generates a spreadsheet which sets forth the inmate number,
calls made, date and time of the calls, and the size of the recording file. Dillon further
testified that only law enforcement and persons granted special permission are permitted
to access the system. He testified he was granted permission to access the spreadsheet
and to record two calls made by Bursey from the jail.
{¶ 33} The State then presented its Exhibit 9, which Dillon testified was a CD-R of
two calls made by Bursey, which Dillon had downloaded and recorded. Dillon testified
that he had placed his initials on the CD-R disk; he then identified his initials and testified
that Exhibit 9 was the CD-R of the two telephone calls he created. The State then played
the disc from a computer placed near the jury. Afterward, the prosecutor addressed
Dillon as follows: “I know that was probably a little difficult for you to hear; could you hear
it from where you’re at?” Tr. 187. When the prosecutor interjected and asked if it was
a fair and accurate recording to the recorded calls, Dillon replied “Briefly, well, yeah - -.”
Dillon then stated, “[i]t appears to be, yes.” Id. -13-
{¶ 34} Defense counsel then objected to the introduction of the exhibit. After
discussions between the court and counsel, the court sustained the objection. The
prosecutor then began to question Dillon again, at which point Dillon indicated that he
had not been “able to hear [the recording] very well” when it was initially played for the
jury. Tr. 190. The State then replayed the recording, after which Dillon testified that it
was a true and accurate recording of the evidence he downloaded from the Pay Tel
system. The trial court then admitted the exhibit. We conclude that the error identified
by Bursey was properly remedied in the trial court, and thus we find no error in the
introduction of the exhibit.
{¶ 35} We also note that Bursey claims the trial court instructed the prosecutor,
whom he claims appeared confused concerning how to conduct a proper authentication,
as to the correct procedure for doing so. We disagree. Instead, a review of that portion
of the transcript demonstrates that the court was merely attempting to clarify the gist of
defense counsel’s objection, which was originally stated somewhat confusingly but which
was ultimately clarified as being a failure to properly authenticate. Thus, any claim of
impropriety is without merit.
{¶ 36} Bursey also raises an issue regarding the State’s failure to provide evidence
“concerning the direct link,” “voice recognition,” or the day the calls were made. Based
upon this, he argues the State did not “lay the proper foundation linking Bursey to the
calls.” This argument was not presented to the trial court. As such, the issue was not
preserved for appellate review.
{¶ 37} The second assignment of error is overruled. -14-
IV. Ineffective Assistance
{¶ 38} Bursey’s third assignment of error is as follows:
COUNSEL WAS INEFFECTIVE FOR FAILURE TO OBJECT TO
INADMISSIBLE EVIDENCE AT TRIAL
{¶ 39} In order to succeed on an ineffective assistance claim, a defendant must
establish that trial counsel's performance was deficient and the deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989), paragraph two of the syllabus. The failure to make a showing of either
deficient performance or prejudice defeats a claim of ineffective assistance of counsel.
Strickland at 697. To establish deficient performance, a defendant must show that his
trial counsel's performance fell below an objective standard of reasonable representation.
Id. at 688; Bradley at 142. To establish prejudice, a defendant must show that there is
“a reasonable probability that, but for counsel's errors, the proceeding's result would have
been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶
204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus.
{¶ 40} Bursey asserts counsel was ineffective because he failed to object to the
introduction of the drug capsules and to the introduction of the photographs taken by Hoff.
However, he admits counsel “may have strategically argued the evidence’s faults to the
jury, [but] admission of the evidence should have been objected to.”
{¶ 41} As stated in our discussion of the first assignment of error, the trial court did
not abuse its discretion regarding the admission of the photos or the drugs. The “failure
to do a futile act cannot be the basis for [an] ineffective assistance [claim], nor could such -15-
a failure be prejudicial.” State v. Powell, 2019-Ohio-4345, 134 N.E.3d 1270, ¶ 69 (8th
Dist.), citing State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 37.
Accord State v. Ropp, 2d Dist. Champaign No. 2018-CA-44, 2020-Ohio-824, ¶ 74. As
admitted by Bursey, defense counsel argued the claimed deficiencies in the evidence
during closing argument. And counsel may well have decided that doing so was a better
strategy than making an objection that would almost certainly have been overruled. This
court will not second guess “debatable” strategies or tactics used during trial. Ropp at
¶ 67.
{¶ 42} Because we cannot conclude that the failure to object to the admission of
the photos and drugs constituted ineffective assistance of counsel, the third assignment
of error is overruled.
V. Sufficiency and Manifest Weight of the Evidence
{¶ 43} The fourth assignment of error asserted by Bursey states:
THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT AND
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN
BURSEY’S CONVICTIONS
{¶ 44} Bursey’s claims the State failed to introduce evidence sufficient to prove he
was in possession of either the gun or the drugs.
{¶ 45} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678 -16-
N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), which states:
An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond a reasonable
doubt. The 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.
(Citation omitted.) Id. at paragraph two of the syllabus.
{¶ 46} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In this situation, a
“ ‘court, reviewing the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines 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. The discretionary power
to grant a new trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 47} “Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
a conviction is supported by the manifest weight of the evidence necessarily includes a -17-
finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-
881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d 501,
¶ 58 (2d Dist.). As a result, “a determination that a conviction is supported by the weight
of the evidence will also be dispositive of the issue of sufficiency.” (Citations omitted.)
State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
{¶ 48} Another important point is that, “[b]ecause the factfinder * * * has the
opportunity to see and hear the witnesses, the cautious exercise of the discretionary
power of a court of appeals to find that a judgment is against the manifest weight of the
evidence requires that substantial deference be extended to the factfinder's
determinations of credibility. The decision whether, and to what extent, to credit the
testimony of particular witnesses is within the peculiar competence of the factfinder, who
has seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288,
1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 49} Bursey was convicted of having weapons while under disability, in violation
of R.C. 2923.13, and possession of drugs, in violation of R.C. 2925.11(A). R.C. 2923.13
states in pertinent part: “[u]nless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous
ordnance * * *.” In order to “have” a firearm for purposes of R.C. 2923.13, a person must
actually or constructively possess it. State v. Fleming, 2d Dist. Clark No. 2014-CA-136,
2015-Ohio-5382, ¶ 26. R.C. 2925.11(A) prohibits a person from knowingly possessing
drugs; possession of a drug may be either actual physical possession or constructive
possession. State v. Mabry, 2d Dist. Montgomery No. 21569, 2007-Ohio-1895, ¶ 18.
“A person acts knowingly, regardless of purpose, when the person is aware that the -18-
person's conduct will probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when the person is aware that such
circumstances probably exist.” R.C. 2901.22(B).
{¶ 50} “ ‘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 can either be actual or constructive. State v. Wolery, 46
Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). A person has constructive possession of
an object when he is conscious of the presence of the object and able to exercise
dominion and control over it, even if it is not within his immediate physical possession.
State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus.
“Establishment of ownership is not required.” State v. Rastbichler, 2d Dist. Montgomery
No. 25753, 2014-Ohio-628, ¶ 33. Readily usable drugs in close proximity to an accused
may constitute sufficient circumstantial evidence to support a finding of constructive
possession. State v. Ruby, 149 Ohio App.3d 541, 2002-Ohio-5381, 778 N.E.2d 101,
¶ 36 (2d Dist.). In determining whether an individual possessed an item, it is necessary
to consider all of the facts and circumstances surrounding the incident. Mabry at ¶ 20.
Circumstantial evidence and direct evidence have the same probative value. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
{¶ 51} Hoff testified that he looked in the passenger window of the Jeep and
observed a handgun in Bursey’s lap. The jury was free to believe this testimony over
that of Bursey and could have reasonably relied on this evidence to determine that Bursey
had actual possession of the gun. Additionally, while Hoff was watching the vehicle, he -19-
observed Bursey bend forward and downward as if to conceal something. The handgun
was later found under Bursey’s seat and, thus, had been within reach of Bursey.
Therefore, the evidence also demonstrated that Bursey was in close proximity to the
handgun such that he was capable of exercising dominion and control over the gun, which
constituted circumstantial evidence that he was in constructive possession of it.
{¶ 52} From a review of the record, Bursey did not have actual possession of the
drugs at the time Hoff observed him, but as stated above, the State was not required to
prove actual possession. Bursey also asserts the State did not prove constructive
possession because his testimony established the Jeep did not belong to him and that he
did not place, and had no knowledge of, either the gun or the drugs in the vehicle. When
asked by the prosecutor whether he had been involved in obtaining the temporary license
tags on the Jeep at the time of the incident, Bursey responded negatively.
{¶ 53} However, the State presented evidence that Bursey was the sole occupant
of the Jeep at the time Hoff encountered him. The State further presented evidence that
Bursey made a call from jail to a woman whom he instructed to pick up the Jeep at the
bar. Bursey later indicated that the Jeep had probably been towed and that she could
get the title and money out of his drawer in order to retrieve it from the towing company
lot. Bursey also testified that, at his request, an individual he identified as “Day Day”
obtained the temporary tags for the vehicle. Finally, he stated he had placed rent money
in the driver’s door pocket.
{¶ 54} The discussions in the recorded calls belied Bursey’s claim that he was
merely a passenger in his friend’s car at the time they went to the bar. Indeed, based
upon the calls, the jury could have reasonably concluded that Bursey did own the Jeep -20-
and that his claim otherwise was not credible. Further, the jury could have inferred from
Bursey’s statement that he had money in the driver’s door pocket that he not only owned
the Jeep, but was aware of the contents of the door pocket, which included 16 drug
capsules. Finally, the jury could have reasonably found constructive possession of drugs
given their close proximity and accessibility to Bursey, who was in the driver’s seat of a
vehicle which he occupied.
{¶ 55} We conclude the State presented evidence sufficient to demonstrate actual
possession of the handgun and constructive possession of the drug capsules. We
further find that his convictions for possession of those items were not against the
manifest weight of the evidence. Therefore, the fourth assignment of error is overruled.
VI. Conclusion
{¶ 56} All of Bursey’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr. J. Joshua Rizzo Johnna M. Shia Hon. Timothy N. O’Connell