State v. DeWitt

2018 Ohio 1892

• Court: Ohio Court of Appeals
• Decided: May 14, 2018
• Docket: CA2017-08-123
• Status: Published

Opinion

[Cite as State v. DeWitt, 2018-Ohio-1892.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2017-08-123

: OPINION - vs – 5/14/2018 :

RICHARD E. DEWITT, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 17CR32853

David P. Fornshell, Warren County Prosecutor, Kirsten A. Brandt, 520 Justice Drive, Lebanon, OH 45036, for plaintiff-appellee

Gieske Law Office, LLC, Krista M. Gieske, 810 Sycamore Street, 3rd Floor, Cincinnati, Ohio 45202, for defendant-appellant

S. POWELL, P.J.

{¶ 1} Defendant-appellant, Richard E. DeWitt, appeals from his conviction in the

Warren County Court of Common Pleas after a jury found him guilty of aggravated

possession of drugs and possession of drug paraphernalia. For the reasons outlined below,

we affirm.

{¶ 2} On April 10, 2017, the Warren County Grand Jury returned an indictment Warren CA2017-08-123

charging DeWitt with aggravated possession of drugs in violation of R.C. 2925.11(A), a

second-degree felony pursuant to R.C. 2925.11(C)(1)(c), and possession of drug

paraphernalia in violation of R.C. 2925.14(C)(1), a fourth-degree misdemeanor. The

charges arose when Officer Jeff Little of the Waynesville Police Department discovered two

baggies containing 16.08 grams of methamphetamine, a glass pipe, a digital scale, and a

butane lighter, after initiating a traffic stop of DeWitt's vehicle at the intersection of Edwards

Drive and High Street in Waynesville, Warren County, Ohio on the night of March 11, 2017.

Following a jury trial, DeWitt was found guilty of both charges and sentenced by the trial

court to a mandatory three-year prison term. The trial court also notified DeWitt that he

would be subject to a mandatory three-year term of postrelease control.

{¶ 3} DeWitt now appeals, raising a single assignment of error for review.

{¶ 4} THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF

AGGRAVATED POSSESSION OF DRUGS AND POSSESSION OF DRUG

PARAPHERNALIA BECAUSE SAID CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶ 5} In his single assignment of error, DeWitt argues his conviction must be

reversed because it was against the manifest weight of the evidence. We disagree.

{¶ 6} In reviewing a manifest weight of the evidence challenge, this court examines

the "inclination of the greater amount of credible evidence, offered at a trial, to support one

side of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-

177, 2012-Ohio-2372, ¶ 14. In conducting such a review, this court must look at the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of the

witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact

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. Morgan, 12th Dist. Butler Nos. CA2013-

-2- Warren CA2017-08-123

08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34. "While appellate review includes the

responsibility to consider the credibility of witnesses and weight given to the evidence,

'these issues are primarily matters for the trier of fact to decide.'" State v. Barnes, 12th Dist.

Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, quoting State v. Walker, 12th Dist.

Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. An appellate court, therefore, will

overturn a conviction due to the manifest weight of the evidence only in extraordinary

circumstances when the evidence presented at trial weighs heavily in favor of acquittal.

State v. Blair, 12th Dist. Butler No. CA2014-01-023, 2015-Ohio-818, ¶ 43.

{¶ 7} As noted above, DeWitt was convicted of aggravated possession of drugs in

violation of R.C. 2925.11(A), which provides "[n]o person shall knowingly obtain, possess,

or use a controlled substance or a controlled substance analog." DeWitt was also convicted

of possession of drug paraphernalia in violation of R.C. 2925.14(C)(1). Pursuant to that

statute, "no person shall knowingly use, or possess with purpose to use, drug

paraphernalia."

{¶ 8} As defined by R.C. 2901.22(B), 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." A defendant's

knowledge may be inferred from the totality of the surrounding circumstances. State v.

NRAG, LLC, 12th Dist. Fayette No. CA2008-12-043, 2009-Ohio-4137, ¶ 22. On the other

hand, the term "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 may be constructive or actual. State v. Williams, 12th Dist. Butler No. CA2014-

09-180, 2015-Ohio-2010, ¶ 14.

-3- Warren CA2017-08-123

{¶ 9} "An accused has 'constructive possession' of an item when the accused is

conscious of the item's presence and is able to exercise dominion and control over it, even

if the item is not within the accused's immediate physical possession." State v. Jester, 12th

Dist. Butler No. CA2010-10-264, 2012-Ohio-544, ¶ 25. Constructive possession may be

proven by circumstantial evidence alone. Williams at ¶ 15. This is because "[c]ircumstantial

and direct evidence are of equal evidentiary value." State v. Frye, 5th Dist. Richland No.

17CA5, 2017-Ohio-7733, ¶ 46, citing State v. Jenks, 61 Ohio St.3d 259, 272 (1991).

"Absent a defendant's admission, the surrounding facts and circumstances, including the

defendant's actions, are evidence that the trier of fact can consider in determining whether

the defendant had constructive possession." State v. Caudill, 12th Dist. Madison No.

CA2017-05-011, 2018-Ohio-550, ¶ 12.

{¶ 10} At trial, Officer Little, the lone witnesses to testify at trial, testified he received

a call on the evening of March 11, 2017 informing him of a potential impaired driver near

the intersection of Dayton Road and Edwards Drive. After receiving this call, Officer Little

drove his police cruiser to that intersection where he observed a single car driving

southbound from Dayton Road towards the corner of Edwards Drive and High Street.

Officer Little testified he then watched as the car rolled through the stop sign located at the

corner of Edwards Drive and High Street before turning westbound onto High Street. Upon

observing this traffic violation, Officer Little activated his overhead lights and initiated a

traffic stop of the vehicle.

{¶ 11} After initiating the traffic stop, Officer Little testified he became alarmed when

the driver, later identified as Dewitt, opened the driver's side door and started walking back

towards his cruiser in a "bladed or sidewise manner."1 According to Officer Little, he

1. Officer Little later testified that a "bladed approach" is similar to a "sideways approach" where the individual stands at an angle. -4- Warren CA2017-08-123

became even more concerned upon realizing he did not have a good clear view of DeWitt's

hands, DeWitt having them either in his pockets or at his belt. When asked why this caused

him concern, Officer Little testified:

My first concern, a bladed approach is something that we're instructed as a potential act of aggression. So I was worried about my safety. I was worried he might have had a weapon that he was trying to hide from my view.

{¶ 12} As Dewitt approached, Officer Little instructed DeWitt to stop and show his

hands. DeWitt, however, did not stop. As a result, Officer Little again instructed DeWitt to

stop and show his hands. DeWitt again did not stop. Finally, as Officer Little testified, "with

my last command I started reaching for my weapon and at that time he stopped near the

rear of his car." Officer Little then approached DeWitt and informed him that he had stopped

him for running through a stop sign, to which DeWitt replied that "he was not even aware

there was a stop sign there."

{¶ 13} Officer Little testified he then asked DeWitt where he was heading that night.

In response, DeWitt replied that he was going to visit a "friend" who lived in a nearby

apartment complex. DeWitt, however, could not identify his "friend" to Officer Little, nor

could DeWitt provide Officer Little with his "friend's" address. Feeling something was amiss,

Officer Little informed DeWitt that he was "suspicious" and that "his answers indicated that

he was extremely nervous talking to me." To this, DeWitt admitted to Officer Little that he

was driving without a valid driver's license. Officer Little then patted DeWitt down for his

safety and placed DeWitt in the back of his cruiser. After placing DeWitt in his cruiser,

Officer Little approached the car again and spoke with the female seated in the car's front

passenger seat, A.T. According to Officer Little, A.T. was also "extremely nervous." Officer

Little testified he then informed A.T. that he was "getting indicators that both of them were

nervous to the extent that there might be contraband in the car."

-5- Warren CA2017-08-123

{¶ 14} After speaking with A.T., Officer Little checked DeWitt's social security

number over his police radio, which indicated DeWitt had an inactive driver's license, as

well as six active license suspensions, and a warrant for his arrest. As Officer Little testified,

"I knew at that time I would be taking him into custody, absolutely." Since all police radio

traffic can be heard by other officers in the area, Officer Little testified he then received a

message from a local deputy regarding DeWitt that "furthered [his] suspicion that there was

possibly narcotics in general and methamphetamine in specific in the vehicle[.]"

{¶ 15} Officer Little then approached A.T. again and informed her that he was

"getting many indicators of contraband in the car[.]" Officer Little further notified A.T. that

he was "prepared to bring a canine out and advised her that if she was not being truthful to

me previously, it was in her interest to be truthful to me now if [he] were to find that there

was narcotics in the car that she was reasonable [sic] aware of." Officer Little then testified

A.T. provided him with reason to search the area in and around the car for drugs. During

this search, it is undisputed that Officer Little discovered two clear plastic baggies containing

a total of 16.08 grams of methamphetamine, one "directly behind" where DeWitt had

eventually stopped on the street after exiting the car, whereas the other was located on the

floor between the car's door and the driver's seat. A further search of the car lead to the

discovery of a glass pipe located on the floor behind the car's driver's seat, as well as a

digital scale and a butane lighter behind the car's front passenger's seat. DeWitt denied

having any knowledge of the drugs or drug paraphernalia.

{¶ 16} After a full and thorough review of the record, we find DeWitt's conviction for

aggravated possession of drugs and possession of drug paraphernalia was not against the

manifest weight of the evidence. DeWitt, however, claims his conviction must be reversed

because the record is so "riddled with evidentiary holes" that it would be exceedingly

problematic, if not impossible, to render a finding of guilt beyond a reasonable doubt. Yet,

-6- Warren CA2017-08-123

the so-called "evidentiary holes" noted by DeWitt, which include, among others – the lack

of evidence regarding the speed in which DeWitt took to walk to the back of the car after he

exited the vehicle; the fact that Officer Little did not see DeWitt drop anything upon exiting

the vehicle; that Officer Little's attention was divided between DeWitt and A.T. during much

of the stop, thus leaving A.T. "free to dispose of the contraband in furtherance of her own

interests;" that DeWitt would have needed to "awkwardly contort himself" to dispose of

contraband behind the driver's seat where he had been sitting; the lack of evidence

establishing that "the car belonged, was titled to, or was exclusively driven" by DeWitt, nor

any direct evidence such as fingerprints or DNA evidence linking him to the drugs and drug

paraphernalia – do not render this case "a textbook illustration of 'reasonable doubt'" as

DeWitt suggests. We in fact find the exact opposite to be true.

{¶ 17} Again, as the record indicates, following a traffic stop, Officer Little discovered

two baggies containing 16.08 grams of methamphetamine, one "directly behind" where

DeWitt had eventually stopped on the street after exiting the car, whereas the other was

located on the floor between the door and the driver's seat, as well as a glass pipe, a digital

scale, and butane lighter. These items were all located in close proximity to DeWitt and

well-within his constructive, if not actual, possession. Moreover, although the record

indicates DeWitt denied having any knowledge of the drugs and/or drug paraphernalia

discovered by Officer Little in and around the car, based on the totality of the surrounding

circumstances, the jury, as the finder of fact, determined that he did have such knowledge.

The record fully supports this finding.

{¶ 18} Furthermore, while Dewitt claims that the jury could not ascertain whether the

drugs and/or drug paraphernalia belong to him or to A.T., it is well-established that "the

state need not establish ownership to prove constructive possession and two or more

persons may have possession of an object together if they can control it, exclusive of

-7- Warren CA2017-08-123

others." Caudill, 2018-Ohio-550 at ¶ 13, citing State v. Weckner, 12th Dist. Brown No.

CA2001-06-009, 2002-Ohio-1012. That is exactly what occurred here. Therefore, finding

DeWitt's conviction for aggravated possession of drugs and possession of drug

paraphernalia was not against the manifest weight of the evidence, but rather, fully

supported by the evidence presented at trial, DeWitt's argument that his conviction was

against the manifest weight of the evidence is without merit. Accordingly, finding no merit

to DeWitt's claim raised herein, DeWitt's single assignment of error is overruled.

{¶ 19} Judgment affirmed.

HENDRICKSON and M. POWELL, JJ., concur.

-8-