[Cite as State v. Day, 2022-Ohio-1954.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210503 TRIAL NO. B-1905208 Plaintiff-Appellee, :
vs. : O P I N I O N.
: ERIC DAY,
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 10, 2022
Joseph T. Deters, Hamilton County Prosecutor, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Matthew S. Schuh, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Defendant-appellant Eric Day found himself in the wrong place at the wrong
time. As police investigated another matter, they happened upon Mr. Day, who had keys in
his pocket to a car brimming with drugs, and his nearby apartment held a cache of guns and
drugs. Based on this development, the trial court revoked his community control and
imposed a 12-month prison sentence, which Mr. Day now appeals. He insists that the trial
court abused its discretion by finding that he violated the terms of his community control and
alleges a deprivation of his right to due process at the revocation hearing. We, however, see
things differently and affirm the judgment of the trial court for the reasons explained below.
I.
{¶2} In February 2020, Mr. Day was convicted of having a weapon while under
disability and sentenced to three years of community control. Eighteen months later, Mr. Day
was arrested after a search of his apartment revealed drugs and firearms. His probation
officer filed a community control violation complaint, alleging that Mr. Day violated Rules 1,
3, 4, and 10 of community control. Mr. Day pled no contest to the alleged violations of Rules
1 and 10 and not guilty to the alleged violations of Rules 3 and 4. Rule 3 provides “I will not
possess or carry a firearm or other lethal weapon,” whereas Rule 4 provides “I will not illegally
obtain or use controlled substances.”
{¶3} At the community control revocation hearing, Mr. Day’s probation officer
testified that officers found him on the premises during an electronic-monitoring-unit search
unrelated to him. The search revealed a Mercedes Benz containing a large stash of marijuana
and three-quarters of a brick of fentanyl. Mr. Day, seated in an adjacent vehicle when the
officers searched the Mercedes, insisted that he did not own the Mercedes, although he had
the keys to it on his person. Further scrutiny revealed that he had a collection of keys that
went to all of the vehicles and apartment units on the premises.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} The officers subsequently decided to search Mr. Day’s apartment. Before they
entered the apartment unit, they handed the collection of keys to Mr. Day’s son so that he
could restrain the dogs in the residence. Mr. Day’s probation officer testified that the
collection of keys included a master key initially, but that it had vanished by the time Mr.
Day’s son returned the keys to the officer.
{¶5} As the officers entered the apartment, they found it in a state of disarray. The
testifying officer could “make out [that] there was one bed, but no more than one bed.” The
officer testified that “there were no belongings to anybody else other than [Mr. Day].” And
although “[Mr. Day’s son] tried to say it was his apartment * * * the landlord says it is not his
son’s apartment.”
{¶6} While searching the apartment, the officers observed drugs in the living room
and dining room of the residence. Then the officers discovered a padlocked closet in the
bedroom (that the now-missing master key would have unlocked). After obtaining a search
warrant, the officers broke the lock and discovered four rifles, two revolvers, two semi-
automatic pistols, and one shotgun in the closet.
{¶7} In the aftermath of this search, indictments followed for Mr. Day’s son for
possession of those weapons and an unidentified third-party for possession of the drugs in
the vehicle. Although Mr. Day managed to avoid indictments for the guns and drugs, the state
maintained that his access to the drugs and weapons sufficed to violate the terms of his
community control.
{¶8} At the conclusion of the hearing, the trial court found that Mr. Day violated
Rules 1, 3, 4, and 10 of community control, and thus revoked community control and imposed
a 12-month sentence. The trial court reasoned that “with respect to Rules 3 and 4 * * * I find
[him] guilty of both of those violations. It is his apartment. * * * The weapons were in his
apartment. He had access to them. It does appear that he had a key for the closet, although
3 OHIO FIRST DISTRICT COURT OF APPEALS
he did not have that key. Appears he had access [or] control over the vehicle that contained
the large amount of drugs. That is a violation of the rules of his probation.”
{¶9} Mr. Day now appeals, arguing that the trial court’s findings were unsupported
by substantial evidence and alleging deprivation of his right to due process.
II.
{¶10} Mr. Day’s first assignment of error challenges the trial court’s finding that he
violated Rules 3 and 4 of community control. “A community-control-revocation hearing is
not a criminal trial, and the state is not required to establish a violation of the terms of
community control beyond a reasonable doubt.” State v. Richardson, 1st Dist. Hamilton Nos.
C-200288 and C-200289, 2021-Ohio-3362, ¶ 22, citing State v. Messer, 12th Dist. Butler No.
CA2014-02-056, 2014-Ohio-5741, ¶ 12. The state must present “substantial” evidence to
establish a violation of community control. Id. We will not disturb the trial court’s decision
to revoke community control absent an abuse of discretion. Id.
{¶11} Mr. Day posits that the trial court abused its discretion by finding that he
violated the terms of community control for two reasons. First, Mr. Day insists that he could
not violate Rules 3 and 4 by possessing firearms and drugs when other individuals were
charged with possession of those same firearms and drugs. Mr. Day seems to suggest that
multiple individuals cannot simultaneously be in possession of the same contraband. To the
contrary, “multiple individuals may constructively possess a particular item of contraband
simultaneously, as constructive possession may be individual or joint.” State v. Cook, 10th
Dist. Franklin No. 19AP-353, 2020-Ohio-2844, ¶ 39, citing
State v. Sherfey, 5th Dist. Fairfield No. 13-CA-37, 2014-Ohio-1717, ¶ 34.
{¶12} Second, Mr. Day seizes on the fact that the trial court merely found that he had
“access” to firearms and drugs, and did not expressly state that he “possess[ed]” the firearms
4 OHIO FIRST DISTRICT COURT OF APPEALS
under Rule 3 or “obtain[ed]” the drugs under Rule 4. According to Mr. Day, although
possession of firearms or drugs would violate community control, mere “access” to
firearms/drugs does not run afoul of the terms of community control. But Ohio courts have
held that “access” to contraband may be sufficient to establish constructive possession of that
contraband. State v. Butler, 42 Ohio St.3d 174, 176, 538 N.E.2d 98 (1989) (“To
constitute possession, it is sufficient that the defendant has constructive possession, meaning
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[Cite as State v. Day, 2022-Ohio-1954.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210503 TRIAL NO. B-1905208 Plaintiff-Appellee, :
vs. : O P I N I O N.
: ERIC DAY,
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 10, 2022
Joseph T. Deters, Hamilton County Prosecutor, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Matthew S. Schuh, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Defendant-appellant Eric Day found himself in the wrong place at the wrong
time. As police investigated another matter, they happened upon Mr. Day, who had keys in
his pocket to a car brimming with drugs, and his nearby apartment held a cache of guns and
drugs. Based on this development, the trial court revoked his community control and
imposed a 12-month prison sentence, which Mr. Day now appeals. He insists that the trial
court abused its discretion by finding that he violated the terms of his community control and
alleges a deprivation of his right to due process at the revocation hearing. We, however, see
things differently and affirm the judgment of the trial court for the reasons explained below.
I.
{¶2} In February 2020, Mr. Day was convicted of having a weapon while under
disability and sentenced to three years of community control. Eighteen months later, Mr. Day
was arrested after a search of his apartment revealed drugs and firearms. His probation
officer filed a community control violation complaint, alleging that Mr. Day violated Rules 1,
3, 4, and 10 of community control. Mr. Day pled no contest to the alleged violations of Rules
1 and 10 and not guilty to the alleged violations of Rules 3 and 4. Rule 3 provides “I will not
possess or carry a firearm or other lethal weapon,” whereas Rule 4 provides “I will not illegally
obtain or use controlled substances.”
{¶3} At the community control revocation hearing, Mr. Day’s probation officer
testified that officers found him on the premises during an electronic-monitoring-unit search
unrelated to him. The search revealed a Mercedes Benz containing a large stash of marijuana
and three-quarters of a brick of fentanyl. Mr. Day, seated in an adjacent vehicle when the
officers searched the Mercedes, insisted that he did not own the Mercedes, although he had
the keys to it on his person. Further scrutiny revealed that he had a collection of keys that
went to all of the vehicles and apartment units on the premises.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} The officers subsequently decided to search Mr. Day’s apartment. Before they
entered the apartment unit, they handed the collection of keys to Mr. Day’s son so that he
could restrain the dogs in the residence. Mr. Day’s probation officer testified that the
collection of keys included a master key initially, but that it had vanished by the time Mr.
Day’s son returned the keys to the officer.
{¶5} As the officers entered the apartment, they found it in a state of disarray. The
testifying officer could “make out [that] there was one bed, but no more than one bed.” The
officer testified that “there were no belongings to anybody else other than [Mr. Day].” And
although “[Mr. Day’s son] tried to say it was his apartment * * * the landlord says it is not his
son’s apartment.”
{¶6} While searching the apartment, the officers observed drugs in the living room
and dining room of the residence. Then the officers discovered a padlocked closet in the
bedroom (that the now-missing master key would have unlocked). After obtaining a search
warrant, the officers broke the lock and discovered four rifles, two revolvers, two semi-
automatic pistols, and one shotgun in the closet.
{¶7} In the aftermath of this search, indictments followed for Mr. Day’s son for
possession of those weapons and an unidentified third-party for possession of the drugs in
the vehicle. Although Mr. Day managed to avoid indictments for the guns and drugs, the state
maintained that his access to the drugs and weapons sufficed to violate the terms of his
community control.
{¶8} At the conclusion of the hearing, the trial court found that Mr. Day violated
Rules 1, 3, 4, and 10 of community control, and thus revoked community control and imposed
a 12-month sentence. The trial court reasoned that “with respect to Rules 3 and 4 * * * I find
[him] guilty of both of those violations. It is his apartment. * * * The weapons were in his
apartment. He had access to them. It does appear that he had a key for the closet, although
3 OHIO FIRST DISTRICT COURT OF APPEALS
he did not have that key. Appears he had access [or] control over the vehicle that contained
the large amount of drugs. That is a violation of the rules of his probation.”
{¶9} Mr. Day now appeals, arguing that the trial court’s findings were unsupported
by substantial evidence and alleging deprivation of his right to due process.
II.
{¶10} Mr. Day’s first assignment of error challenges the trial court’s finding that he
violated Rules 3 and 4 of community control. “A community-control-revocation hearing is
not a criminal trial, and the state is not required to establish a violation of the terms of
community control beyond a reasonable doubt.” State v. Richardson, 1st Dist. Hamilton Nos.
C-200288 and C-200289, 2021-Ohio-3362, ¶ 22, citing State v. Messer, 12th Dist. Butler No.
CA2014-02-056, 2014-Ohio-5741, ¶ 12. The state must present “substantial” evidence to
establish a violation of community control. Id. We will not disturb the trial court’s decision
to revoke community control absent an abuse of discretion. Id.
{¶11} Mr. Day posits that the trial court abused its discretion by finding that he
violated the terms of community control for two reasons. First, Mr. Day insists that he could
not violate Rules 3 and 4 by possessing firearms and drugs when other individuals were
charged with possession of those same firearms and drugs. Mr. Day seems to suggest that
multiple individuals cannot simultaneously be in possession of the same contraband. To the
contrary, “multiple individuals may constructively possess a particular item of contraband
simultaneously, as constructive possession may be individual or joint.” State v. Cook, 10th
Dist. Franklin No. 19AP-353, 2020-Ohio-2844, ¶ 39, citing
State v. Sherfey, 5th Dist. Fairfield No. 13-CA-37, 2014-Ohio-1717, ¶ 34.
{¶12} Second, Mr. Day seizes on the fact that the trial court merely found that he had
“access” to firearms and drugs, and did not expressly state that he “possess[ed]” the firearms
4 OHIO FIRST DISTRICT COURT OF APPEALS
under Rule 3 or “obtain[ed]” the drugs under Rule 4. According to Mr. Day, although
possession of firearms or drugs would violate community control, mere “access” to
firearms/drugs does not run afoul of the terms of community control. But Ohio courts have
held that “access” to contraband may be sufficient to establish constructive possession of that
contraband. State v. Butler, 42 Ohio St.3d 174, 176, 538 N.E.2d 98 (1989) (“To
constitute possession, it is sufficient that the defendant has constructive possession, meaning
immediate access to the weapon.”); State v. Fleming, 2d Dist. Clark No. 2014-CA-136, 2015-
Ohio-5382, ¶ 26 (“Constructive possession can be established by the fact that an individual
had access to the gun and the ability to control its use.”). Thus, on the record at hand, we find
that Mr. Day’s access to firearms and drugs was sufficient to constitute a violation of his
{¶13} Accordingly, Mr. Day has not shown that the trial court abused its discretion
when it determined that he had violated Rules 3 and 4 of community control, and we overrule
his first assignment of error.
III.
{¶14} Mr. Day’s second assignment of error alleges that the trial court violated his
due process rights by depriving him of an opportunity to be heard and present evidence at the
community control revocation hearing. But Mr. Day failed to raise this issue below, which
limits our review to plain error. Crim.R. 52(B) (“Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”).
{¶15} Due process requires that the trial court afford the defendant an opportunity to
present evidence at trial. See State v. Litreal, 170 Ohio App.3d 670, 2006-Ohio-5416, 868
N.E.2d 1018, ¶ 17 (4th Dist.) (holding that the trial court plainly deprived the defendant of an
opportunity to present evidence when the trial court found him guilty before the state rested
its case and while the defendant’s oral Crim.R. 29 motion for acquittal was pending). Here,
5 OHIO FIRST DISTRICT COURT OF APPEALS
Mr. Day maintains that he was deprived of his opportunity to be heard and present evidence
because the trial court did not ask him whether he had any evidence that he wished to present
at the revocation hearing. That is, after excusing the state’s witness, the trial court asked if
there was “any argument you want to make?” Both the prosecutor and defense counsel
proceeded to give closing arguments. Defense counsel never indicated that he intended to
introduce evidence on behalf of Mr. Day (nor did counsel proffer any evidence). The trial
court subsequently found Mr. Day guilty of violating Rules 1, 3, 4, and 10 without inquiring
whether Mr. Day wished to introduce any evidence.
{¶16} Without any proffer of evidence, we can only speculate what evidence Mr. Day
would have advanced and whether it would have impacted the trial court’s decisional calculus.
See, e.g., Howell v. Howell, 10th Dist. Franklin No. 04AP-436, 2005-Ohio-2798, ¶ 16 (“ At
the hearing of April 20, 2004, * * * no party or their counsel sought to introduce testimony or
other evidence. * * * Absent any proffer of evidence by defendant, we cannot conclude that
the trial court deprived defendant of an opportunity to present evidence in support of his
contentions.”). Under these circumstances, we cannot conclude that the trial court
committed plain error by revoking community control without asking Mr. Day whether he
wished to present evidence. We accordingly overrule Mr. Day’s second assignment of error.
* * *
{¶17} In light of the foregoing, we overrule both of Mr. Day’s assignments of error
and affirm the judgment of the trial court.
Judgment affirmed. MYERS, P. J., and WINKLER, J., concur. Please note:
The court has recorded its entry on the date of the release of this opinion.