[Cite as State v. Combs, 2018-Ohio-2420.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-53 : v. : Trial Court Case No. 2016-CR-287 : KYLE S. COMBS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 22nd day of June, 2018.
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
JENNIFER D. BRUMBY, Atty. Reg. No. 0076440, 4407 Walnut Street, Suite 210, Dayton, Ohio 45440 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Defendant-appellant Kyle Combs appeals from his conviction and sentence
for possession of heroin. He contends that the State failed to present evidence sufficient
to support the conviction and that the conviction is against the manifest weight of the
evidence.
{¶ 2} We conclude that there is sufficient evidence upon which a rational finder of
fact could rely in concluding that Combs is guilty of possession of heroin. We further find
that the trial court, as the finder of fact, did not lose its way in convicting Combs.
Accordingly, the judgment of the trial court is affirmed.
I. Facts and Course of the Proceedings
{¶ 3} On November 20, 2015, Fairborn Police Officer Nathan Penrod was on duty
when he was dispatched to investigate a call regarding a “potential intoxicated subject
that was unable to walk or having a hard time walking.” Tr. p. 16. Upon arriving at the
scene, he discovered a man, later identified as Combs, lying on the ground. Penrod
attempted to rouse the man, but was unsuccessful. Penrod noted no smell of alcohol.
He did however observe that the man’s pupils were “pinpoint” and he was snoring.
{¶ 4} Penrod called for paramedics. He then attempted to locate Combs’s
identification. Penrod lifted Combs’s shirt slightly and noted that a syringe was sticking
out of his left pants’ pocket; he also found a small plastic bag in the pocket. The bag
contained a white powder and a single pill. Both the syringe and the bag were taken into
police custody. The syringe was sent to the Miami Valley Regional Crime Laboratory for
testing. Forensic chemist Brooke Ehlers tested the syringe and found heroin residue in -3-
an amount too small to weigh.
{¶ 5} Combs was indicted on one count of possession of heroin in violation of R.C.
2925.11(A). He filed a motion to suppress which the trial court denied. Combs waived
his right to a jury trial, and a bench trial was conducted on July 21, 2017. The trial court
found Combs guilty of the offense and sentenced him to community control sanctions with
the condition that he successfully complete the Greene Leaf Therapeutic Community
Program.
{¶ 6} Combs appeals.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 7} The sole assignment of error asserted by Combs states as follows:
MR. COMB’S [SIC] CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AS THE STATE DID NOT PROVE HE
KNOWINGLY POSSESSED RESIDUE.
{¶ 8} We note that while Combs’ assignment of error states that he is challenging
the weight of the evidence, he also addresses the sufficiency of that evidence in his
argument. Thus, we will address both issues.
{¶ 9} A sufficiency of the evidence analysis focuses upon whether the prosecution
presented adequate evidence, viewing such evidence in the light most favorable to the
prosecution, to sustain the verdict. (Citations omitted.) State v. Radford, 2d Dist. Clark
No. 2016-CA-80, 2017-Ohio-8189, ¶ 14. The prosecution has presented sufficient
evidence when “any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” Id., quoting State v. Jenks, 61 Ohio St.3d -4-
259, 574 N.E.2d (1991), paragraph two of the syllabus.
{¶ 10} A manifest weight analysis, in contrast, requires an appellate court to review
the record, weigh the evidence and any reasonable inferences allowed by the evidence,
consider witness credibility, and determine whether the trier of fact, in resolving any
evidentiary conflicts, “clearly lost its way and created such a miscarriage of justice that
the conviction must be reversed and a new trial ordered.” Radford at ¶ 15. This
consideration of the evidence must be exercised with caution so that a new trial will only
be granted “in the exceptional case in which the evidence weighs heavily against the
conviction.” Id., quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist. 1983). Though different legal concepts are involved, if it is concluded that a verdict
is supported by the manifest weight of the evidence, the evidence, by necessity, is legally
sufficient. (Citations omitted.) Radford at ¶ 16.
{¶ 11} Combs was convicted of possession of heroin. That offense is proscribed
by R.C. 2925.11(A) which provides that “[n]o person shall knowingly obtain, possess, or
use a controlled substance or a controlled substance analog.” “A person acts knowingly,
regardless of purpose, when the person is aware that the 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).
{¶ 12} Combs relies upon State v. Susser, 2d Dist. Montgomery No. 11787, 1990
WL 197958 (Dec. 5, 1990), as support for his contention that his conviction is not
supported by the evidence, because the heroin found in his possession was of such a
minute quantity that it cannot constitute a violation of R.C. 2925.11(A). He also cites -5-
State v. Dempsey, 22 Ohio St.2d 219, 223, 259 N.E.2d 745 (1970), and State v. Brehem,
27 Ohio St.2d 239, 241, 272 N.E.2d 122 (1971), as support for his claim that the fact of
physical possession is insufficient to prove knowledge.
{¶ 13} However, our holding in Susser was found to be in conflict with a decision
from the Eighth District Court of Appeals wherein the defendant was convicted of drug
abuse in violation of R.C. 2925.11. See State v. Teamer, 82 Ohio St.3d 490, 696 N.E.2d
1049 (1998) (“The certified issue is ‘whether the amount [of the controlled substance] is
a factor in determining the crime of drug abuse.’ ”) Further, both Dempsey and Brehem
pre-date Teamer.
{¶ 14} In Teamer, the Ohio Supreme Court stated:
In our view, the unambiguous language of R.C. 2925.11 punishes
conduct for the possession of any amount of a controlled substance. It does
not qualify the crime by stating that the amount of the drug must be of a
certain weight. We may not insert an amount provision into the
unambiguous language of the statute. Appellant argues that because only
a trace of cocaine was detected, it is drastically unfair to charge him with a
felony crime when another statutory provision is more applicable.
However, we find that this argument is better addressed to the General
Assembly. We must apply the statute as written.
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[Cite as State v. Combs, 2018-Ohio-2420.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-53 : v. : Trial Court Case No. 2016-CR-287 : KYLE S. COMBS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 22nd day of June, 2018.
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
JENNIFER D. BRUMBY, Atty. Reg. No. 0076440, 4407 Walnut Street, Suite 210, Dayton, Ohio 45440 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Defendant-appellant Kyle Combs appeals from his conviction and sentence
for possession of heroin. He contends that the State failed to present evidence sufficient
to support the conviction and that the conviction is against the manifest weight of the
evidence.
{¶ 2} We conclude that there is sufficient evidence upon which a rational finder of
fact could rely in concluding that Combs is guilty of possession of heroin. We further find
that the trial court, as the finder of fact, did not lose its way in convicting Combs.
Accordingly, the judgment of the trial court is affirmed.
I. Facts and Course of the Proceedings
{¶ 3} On November 20, 2015, Fairborn Police Officer Nathan Penrod was on duty
when he was dispatched to investigate a call regarding a “potential intoxicated subject
that was unable to walk or having a hard time walking.” Tr. p. 16. Upon arriving at the
scene, he discovered a man, later identified as Combs, lying on the ground. Penrod
attempted to rouse the man, but was unsuccessful. Penrod noted no smell of alcohol.
He did however observe that the man’s pupils were “pinpoint” and he was snoring.
{¶ 4} Penrod called for paramedics. He then attempted to locate Combs’s
identification. Penrod lifted Combs’s shirt slightly and noted that a syringe was sticking
out of his left pants’ pocket; he also found a small plastic bag in the pocket. The bag
contained a white powder and a single pill. Both the syringe and the bag were taken into
police custody. The syringe was sent to the Miami Valley Regional Crime Laboratory for
testing. Forensic chemist Brooke Ehlers tested the syringe and found heroin residue in -3-
an amount too small to weigh.
{¶ 5} Combs was indicted on one count of possession of heroin in violation of R.C.
2925.11(A). He filed a motion to suppress which the trial court denied. Combs waived
his right to a jury trial, and a bench trial was conducted on July 21, 2017. The trial court
found Combs guilty of the offense and sentenced him to community control sanctions with
the condition that he successfully complete the Greene Leaf Therapeutic Community
Program.
{¶ 6} Combs appeals.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 7} The sole assignment of error asserted by Combs states as follows:
MR. COMB’S [SIC] CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AS THE STATE DID NOT PROVE HE
KNOWINGLY POSSESSED RESIDUE.
{¶ 8} We note that while Combs’ assignment of error states that he is challenging
the weight of the evidence, he also addresses the sufficiency of that evidence in his
argument. Thus, we will address both issues.
{¶ 9} A sufficiency of the evidence analysis focuses upon whether the prosecution
presented adequate evidence, viewing such evidence in the light most favorable to the
prosecution, to sustain the verdict. (Citations omitted.) State v. Radford, 2d Dist. Clark
No. 2016-CA-80, 2017-Ohio-8189, ¶ 14. The prosecution has presented sufficient
evidence when “any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” Id., quoting State v. Jenks, 61 Ohio St.3d -4-
259, 574 N.E.2d (1991), paragraph two of the syllabus.
{¶ 10} A manifest weight analysis, in contrast, requires an appellate court to review
the record, weigh the evidence and any reasonable inferences allowed by the evidence,
consider witness credibility, and determine whether the trier of fact, in resolving any
evidentiary conflicts, “clearly lost its way and created such a miscarriage of justice that
the conviction must be reversed and a new trial ordered.” Radford at ¶ 15. This
consideration of the evidence must be exercised with caution so that a new trial will only
be granted “in the exceptional case in which the evidence weighs heavily against the
conviction.” Id., quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist. 1983). Though different legal concepts are involved, if it is concluded that a verdict
is supported by the manifest weight of the evidence, the evidence, by necessity, is legally
sufficient. (Citations omitted.) Radford at ¶ 16.
{¶ 11} Combs was convicted of possession of heroin. That offense is proscribed
by R.C. 2925.11(A) which provides that “[n]o person shall knowingly obtain, possess, or
use a controlled substance or a controlled substance analog.” “A person acts knowingly,
regardless of purpose, when the person is aware that the 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).
{¶ 12} Combs relies upon State v. Susser, 2d Dist. Montgomery No. 11787, 1990
WL 197958 (Dec. 5, 1990), as support for his contention that his conviction is not
supported by the evidence, because the heroin found in his possession was of such a
minute quantity that it cannot constitute a violation of R.C. 2925.11(A). He also cites -5-
State v. Dempsey, 22 Ohio St.2d 219, 223, 259 N.E.2d 745 (1970), and State v. Brehem,
27 Ohio St.2d 239, 241, 272 N.E.2d 122 (1971), as support for his claim that the fact of
physical possession is insufficient to prove knowledge.
{¶ 13} However, our holding in Susser was found to be in conflict with a decision
from the Eighth District Court of Appeals wherein the defendant was convicted of drug
abuse in violation of R.C. 2925.11. See State v. Teamer, 82 Ohio St.3d 490, 696 N.E.2d
1049 (1998) (“The certified issue is ‘whether the amount [of the controlled substance] is
a factor in determining the crime of drug abuse.’ ”) Further, both Dempsey and Brehem
pre-date Teamer.
{¶ 14} In Teamer, the Ohio Supreme Court stated:
In our view, the unambiguous language of R.C. 2925.11 punishes
conduct for the possession of any amount of a controlled substance. It does
not qualify the crime by stating that the amount of the drug must be of a
certain weight. We may not insert an amount provision into the
unambiguous language of the statute. Appellant argues that because only
a trace of cocaine was detected, it is drastically unfair to charge him with a
felony crime when another statutory provision is more applicable.
However, we find that this argument is better addressed to the General
Assembly. We must apply the statute as written.
Accordingly, we find that the quantity of a controlled substance is not
a factor in determining whether a defendant may lawfully be convicted of
drug abuse, in violation of R.C. 2925.11(A). As long as there is
scientifically accepted testimony from which a factfinder could conclude -6-
beyond a reasonable doubt that a controlled substance was present, a
conviction for drug abuse pursuant to R.C. 2925.11(A) will not be reversed
based on the amount of contraband involved.
***
In Ohio, juries are instructed that the element of knowledge is to be
determined from the attendant facts and circumstances particular to each
case. “Since you cannot look into the mind of another, knowledge is
determined from all the facts and circumstances in evidence. You will
determine from these facts and circumstances whether there existed at the
time in the mind of the defendant an awareness of the probability that * * *.”
4 Ohio Jury Instructions (1997), Section 409.11(3). Likewise, case law
instructs, “Intent ‘ “can never be proved by the direct testimony of a third
person and it need not be. It must be gathered from the surrounding facts
and circumstances.” ’ ” State v. Lott (1990), 51 Ohio St.3d 160, 168, 555
N.E.2d 293, 302, quoting State v. Huffman (1936), 131 Ohio St. 27, * * *, 1
N.E.2d 313, paragraph four of the syllabus.
Thus, whether a person charged with drug abuse in violation of R.C.
2925.11 knowingly possessed, obtained, or used a controlled substance is
to be determined from all the attendant facts and circumstances available.
If there is sufficient evidence such that a reasonable trier of fact could have
found that the state had proven guilt beyond a reasonable doubt, a
reviewing court may not reverse a conviction. State v. Jenks (1991), 61
Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. -7-
Id. at 491-492.
{¶ 15} In this case, Penrod testified that, based upon his experience and training,
both the snoring and the “pinpoint” pupils he observed when he tried to rouse Combs
were indicative of a heroin overdose. Penrod further testified that he observed the
paramedics administer a drug to Combs which caused him to regain consciousness, and
this also indicated to Penrod that Combs had overdosed on heroin. Again, Ehlers
testified that, even though the residue discovered in the syringe found in Combs’s pocket
was too small to weigh, she was able to determine that it was heroin based upon accepted
scientific techniques.
{¶ 16} Based upon the record before us, we cannot conclude that the trial court
lost its way in determining that Combs violated R.C. 2925.11(A), or that the State did not
present sufficient evidence to sustain the conviction. Accordingly, the sole assignment
of error is overruled.
III. Conclusion
{¶ 17} Combs’s sole assignment of error being overruled, the judgment of the trial
court is affirmed.
WELBAUM, P.J. and HALL, J., concur.
Copies mailed to:
Nathaniel R. Luken Jennifer D. Brumby -8-
Hon. Stephen Wolaver