State v. Henson

2014 Ohio 753

• Court: Ohio Court of Appeals
• Decided: March 3, 2014
• Docket: 5-13-24
• Status: Published

Opinion

[Cite as State v. Henson, 2014-Ohio-753.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 5-13-24

v.

CESJAR J. HENSON, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Trial Court No. 2013 CR 12

Judgment Affirmed

Date of Decision: March 3, 2014

APPEARANCES:

Scott B. Johnson for Appellant

Elizabeth H. Smith for Appellee Case No. 5-13-24

PRESTON, J.

{¶1} Defendant-appellant, Cesjar J. Henson (“Henson”), appeals the

Hancock County Court of Common Pleas’ judgment entry of sentence. For the

reasons that follow, we affirm.

{¶2} This case stems from a March 2, 2012 traffic stop, during which an

Ohio State Highway Patrol trooper found cocaine on Henson’s person.

{¶3} On January 22, 2013, the Hancock County Grand Jury indicted

Henson on one count of possession of cocaine in violation of R.C. 2925.11(A), a

fifth-degree felony. (Doc. No. 1).

{¶4} The trial court held an arraignment hearing on January 30, 2013.

Henson appeared with counsel and entered a plea of not guilty. (Doc. No. 6).

{¶5} On Aug. 26 and 27, 2013, a jury trial was held on the indictment, and

the jury found Henson guilty. (Aug. 26-27, 2013 Tr., Vol. Two, at 290); (Doc.

No. 46).

{¶6} The trial court held a sentencing hearing on Aug. 29, 2013. (Aug. 29,

2013 Tr. at 3); (Doc. No. 47). Based on Henson’s criminal history, the trial court

concluded that a prison term was appropriate and sentenced him to 11 months in

prison. (Id. at 12); (Id.). The trial court also ordered Henson’s operator’s license

suspended for 9 months and that he pay the costs of the proceedings. (Id. at 12,

-2- Case No. 5-13-24

20); (Id.). The trial court filed its judgment entry of sentence on September 10,

2013. (Doc. No. 47).

{¶7} On September 17, 2013, Henson filed a notice of appeal. (Doc. No.

51). Henson raises one assignment of error for our review.

Assignment of Error

The defendant’s conviction was not supported by the manifest weight of the evidence.

{¶8} In his assignment of error, Henson argues that his cocaine-possession

conviction was against the manifest weight of the evidence. Specifically, he

argues that the State failed to demonstrate beyond a reasonable doubt that he

“knowingly” possessed cocaine. Henson also suggests, “[t]he fact that [his]

criminal history was revealed to the trier of fact cannot be ignored.” (Appellant’s

Brief at 8).

{¶9} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the

evidence and all reasonable inferences, consider[ ] the credibility of witnesses and

determine[ ] whether in resolving 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. Thompkins, 78

Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175

-3- Case No. 5-13-24

(1st Dist.1983). A reviewing court must, however, allow the trier of fact

appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

When applying the manifest-weight standard, “[o]nly in exceptional cases, where

the evidence ‘weighs heavily against the conviction,’ should an appellate court

overturn the trial court’s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34,

2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-

6524, ¶ 119.

{¶10} The criminal offense of possession of cocaine found in R.C.

2925.11(A) provides: “[n]o person shall knowingly obtain, possess, or use a

controlled substance or a controlled substance analog.” To convict a defendant of

possession of cocaine, the State is “required to prove beyond a reasonable doubt

that defendant knowingly possessed cocaine.” State v. Williams, 190 Ohio App.3d

645, 2010-Ohio-5259, ¶ 11 (10th Dist.) (citations omitted). R.C. 2901.22(B)

defines the culpability of “knowingly” as:

A person acts knowingly, regardless of his purpose, when he is

aware that his conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of

circumstances when he is aware that such circumstances probably

exist.

-4- Case No. 5-13-24

“When determining whether a defendant acted knowingly, his state of mind must

be determined from the totality of the circumstances surrounding the alleged

crime.” State v. Edwards, 10th Dist. Franklin No. 12AP-993, 2013-Ohio-3597, ¶

10 (citations omitted). See also State v. Teamer, 82 Ohio St.3d 490, 492 (1998).

{¶11} At trial, the State offered testimony of Trooper Derthick, who

discovered cocaine in the form of “crack rock” on Henson’s person during a traffic

stop in the early morning hours of March 2, 2012. (Aug. 26-27, 2013 Tr., Vol.

One, at 162, 179); (State’s Ex. 1). Trooper Derthick testified that he stopped a

Ford Expedition operated by Henson after observing the Expedition make an

illegal left turn from a straight-ahead lane rather than the turn lane. (Aug. 26-27,

2013 Tr., Vol. One, at 165-167).

{¶12} Henson told Trooper Derthick that he was a musician and had just

got done shooting a music video at Studio 4, where he consumed one cocktail.

(Id. at 169-170). Trooper Derthick determined that Henson was impaired and

placed him under arrest after a portable breath test revealed Henson’s blood

alcohol content was 0.128 grams by weight of alcohol per 210 liters of breath, and

after Trooper Derthick administered field sobriety tests. (Id. at 170-178).

{¶13} After placing Henson under arrest, Trooper Derthick frisked him.

(Id. at 179). During the frisk, Trooper Derthick found “[a] white rock like

-5- Case No. 5-13-24

substance in [Henson’s] back right pocket,” which “looked like a crack rock.”1

(Id.). Trooper Derthick testified that he asked Henson about the substance, and

Henson denied knowing what it was. (Id. at 180, 195). Trooper Derthick

transported Henson to the Findlay, Ohio Patrol Post, where Henson’s blood

alcohol content was 0.116 grams by weight of alcohol per 210 liters of breath

according to the BAC Data Master machine. (Id. at 180-181).

{¶14} Trooper Derthick identified State’s Exhibit 1 as a DVD video of his

traffic stop of Henson. (Id. at 189-190). The State played the DVD for the jury,

with Trooper Derthick offering explanations of what was happening at certain

points during the stop. (Id. at 190-197).

{¶15} On cross-examination, Trooper Derthick testified that “[i]t’s always

been a rumor that they run drugs out of [Studio 4] quite often” and that Studio 4

has a reputation for being a hotbed for drug activity. (Id. at 199). He testified that

he had never dealt with any drug cases involving Studio 4. (Id. at 199-200).

{¶16} Trooper Derthick testified that, after discovering the cocaine on

Henson’s person, he did not indicate to Henson that he believed it was cocaine

because he wanted Henson to tell him what it was. (Id. at 201-202). Henson

1 The State also offered the testimony of the criminalist from the Ohio State Highway Patrol Crime Laboratory who analyzed the substance Trooper Derthick found on Henson’s person and concluded that it was “cocaine base.” (Aug. 26-27, 2013 Tr., Vol. One, at 128, 156-157). Henson does not dispute that the substance was cocaine or that he possessed it, so we will not address the evidence concerning those elements of the offense.

-6- Case No. 5-13-24

never tried to explain to Trooper Derthick what the substance was, nor did he

admit that it was cocaine. (Id. at 202). Once he had transported Henson back to

the post, Trooper Derthick asked Henson if the substance he found in Henson’s

pocket was crack or crystal meth, and Henson again denied knowing what it was.

(Id.).

{¶17} Trooper Derthick did not remember finding any business cards on

Henson’s person. (Id. at 202-203). He testified that the cocaine he found in

Henson’s pocket was loose in his pocket, with no container or packaging. (Id. at

204). Trooper Derthick testified that “[p]eople carry drugs in any which way,”

and he would not call it unusual for someone to have a crack rock loose in that

person’s pocket. (Id.). He testified that of the fewer than a dozen arrests he has

made for crack cocaine, the drug was in packages most of the time. (Id. at 205).

He recalled an arrest by another trooper who saw “loose crack rocks” come out of

that suspect’s pocket while he was resisting arrest. (Id. at 208).

{¶18} On re-direct examination, Trooper Derthick testified that he

performed a pat down on Henson before placing him in his cruiser, at which point

he did not find the cocaine. (Id. at 209-210). However, after arresting Henson, he

performed a more thorough search of Henson, including his pockets, and found the

cocaine. (Id. at 209-210).

-7- Case No. 5-13-24

{¶19} After Trooper Derthick concluded his testimony, the trial court

admitted the State’s exhibits into evidence. (Id. at 214). The State rested, and

Henson moved for acquittal pursuant to Crim.R. 29. (Id. at 214-217). The trial

court denied Henson’s motion for acquittal and recessed for the evening. (Id. at

217, 219).

{¶20} The next morning, Henson took the stand. (Aug. 26-27, 2013 Tr.,

Vol. Two, at 224). He testified that he had a criminal history of possession and

trafficking in drugs, with the most recent conviction coming in 2009, but that he

had moved on since then. (Id. at 225). Henson testified that he is in the music

industry and works for Cin Digital Media in Findlay “through the web.” (Id. at

225).

{¶21} Henson testified that on the night of March 2, 2012, he got a call

from his promotion executive who told him he had the budget to shoot a music

video at Studio 4 in Findlay. (Id.). Henson traveled to Studio 4 and when he

arrived, he had to be escorted in by the bouncers because of the “major crowd”

that night. (Id. at 225-226). Henson “brought about four outfits” and had “about

at least thirteen changes” for the video. (Id. at 226). Henson testified that the

outfits he was not wearing during the video were sitting in a public area, “right on

the edge of the stage right next to the men’s restroom. So it would make it easy

-8- Case No. 5-13-24

for [him] to grab and change and then go into the bathroom then come out.” (Id.

at 227).

{¶22} After Henson left Studio 4, he went across the street to a gas station

to get gas and some cigarettes. (Id.). When Henson got back into his vehicle and

pulled into the roadway, a car pulled up next to his and invited him to an after

party. (Id. at 227-228). Henson then made the left turn for which Trooper

Derthick pulled him over. (Id. at 228).

{¶23} Henson testified that the video of his traffic stop, State’s Exhibit 1,

was accurate. (Id.). He said “[r]eally nothing was going through [his] mind at the

time” he was pulled over, except that he was wondering why he was being

stopped. (Id.). Henson testified that when Trooper Derthick asked him what was

in his pockets while he was searching him, he told him he “had a lighter, a pack of

cigarettes, and some business cards [he] had got from the club.” (Id. at 229). He

testified that he told Trooper Derthick he did not know what was in his rear

pocket, other than the business cards. (Id.).

{¶24} On cross-examination, the State asked Henson about his convictions

and sentences for possession of cocaine in 2003 and for trafficking in cocaine in

2007 and 2009. (Id. at 230-233); (State’s Exs. 7-9). Henson testified that only he

wore the clothes that he brought for himself to Studio 4 and that no one shared

clothing with him. (Aug. 26-27, 2013 Tr., Vol. Two, at 234). When the attorney

-9- Case No. 5-13-24

for the State asked Henson whether he saw anyone actually touch his pants the

evening he was at Studio 4, he said he could not say because he was on the other

side of the building. (Id. at 238). He was “just in and out of” Studio 4 for about

an hour and 15 or 20 minutes the night he shot the music video. (Id. at 235, 237).

Henson said he consumed a “large cocktail” consisting of Cognac, Grand Marnier,

grenadine, and soda while at Studio 4, but he did not consume alcohol before he

arrived at or after he left Studio 4. (Id. at 235-236). He admitted that there was

more than just one shot of alcohol in his cocktail. (Id. at 236). Henson testified

that he received the business cards as “soon as [he] walked in the door,” and he

put them in the pocket in which Trooper Derthick later found the cocaine. (Id. at

238).

{¶25} On re-direct examination, Henson testified that he was seen a number

of times in the music video with an unopened bottle of champagne in his hand.

(Id. at 239). He said that he was at least 30 feet away from his changes of clothes

while he was shooting the video and could not see them because the “[p]lace was

too crowded.” (Id.).

{¶26} On re-cross examination, Henson said he was “not even sure” why

someone would put a rock of crack cocaine in his back pocket. (Id. at 240).

{¶27} After Henson’s testimony, the defense rested. (Id.). The State

offered no rebuttal testimony. (Id.). The trial court admitted into evidence the

-10- Case No. 5-13-24

additional exhibits introduced by the State during its cross-examination of Henson.

(Id.). Counsel gave their closing arguments, and the trial court charged the jury.

(Id. at 244-288). The jury found Henson guilty of possession of cocaine. (Id. at

290).

{¶28} After examining the record in this case, we cannot conclude that 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 “knowingly” element of

the offense is the only one at issue. “The statutory definition of ‘knowingly’ does

not require that appellant know that cocaine was in his pocket to an absolute

certainty. Instead, the State of Ohio had only to show that appellant was aware

that he probably had cocaine in his pocket.” State v. Williams, 10th Dist. Franklin

No. 09AP-1152, 2010-Ohio-3383, ¶ 6.

{¶29} There was no direct evidence presented that Henson knew the

substance in his back right pocket was cocaine, but “when the disputed issue is the

defendant’s culpable mental state, direct evidence will usually not be available

and, as such, proof must be derived from circumstantial evidence.” State v.

Rodgers, 3d Dist. Hancock No. 5-10-35, 2011-Ohio-3003, ¶ 27, citing State v.

Jenks, 61 Ohio St.3d 259 (1991), paragraph one of the syllabus, superseded by

state constitutional amendment on other grounds as stated in State v. Smith, 80

Ohio St.3d 89 (1997). See also State v. Pierce, 3d Dist. Paulding No. 11-09-05,

-11- Case No. 5-13-24

2010-Ohio-478, ¶ 15 (“The issue of whether a person charged with drug

possession knowingly possessed a controlled substance ‘is to be determined from

all the attendant facts and circumstances available.’”), quoting Teamer, 82 Ohio

St.3d at 492; Edwards, 2013-Ohio-3597, at ¶ 10. “Circumstantial evidence has the

same probative value as direct evidence.” Rodgers at ¶ 27, citing Jenks at

paragraph one of the syllabus.

{¶30} The State presented evidence—and Henson does not dispute—that

Henson had cocaine in his pocket. This alone is circumstantial evidence that

Henson knew he probably had cocaine in his pocket. See Williams at ¶ 14. See

also State v. Paidousis, 10th Dist. Franklin No. 00AP-1118, 2001 WL 436079,

*3 (May 1, 2001) (“We agree with the state’s argument that it was a

permissible inference that the heroin, having been found in a jacket worn by

defendant, was there with defendant’s knowledge.”), citing State v. Walker, 10th

Dist. Franklin No. 90AP-34, 1990 WL 126294 (Aug. 30, 1990).

{¶31} Additional circumstantial evidence was Henson’s decision to go to a

busy nightclub with a reputation for being a hotbed for drug activity to shoot a

music video. His decision to drink a “large cocktail” at Studio 4 may have

reasonably suggested to the jury that Henson was not at the nightclub strictly on

business. In addition, Henson told Trooper Derthick on the night of his arrest that

he was in the club for less than an hour, but he inconsistently testified that he was

-12- Case No. 5-13-24

at Studio 4 for about an hour and 15 or 20 minutes. (State’s Ex. 1); (Aug. 26-27,

2013 Tr., Vol. Two, at 235).

{¶32} Henson suggests that someone at Studio 4 may have planted the

cocaine in his pocket while he was in a different change of clothes. However,

beyond Henson speculating that someone put the cocaine in his pocket, there was

no evidence that anyone else at the nightclub touched or wore his pants. To the

contrary, Henson testified that no one shared clothing with him that night and that

he was the only person who wore the clothes he took to Studio 4. (Aug. 26-27,

2013 Tr., Vol. Two, at 234). Nor is there any evidence supporting Henson’s

theory that the cocaine was handed to him without his knowledge along with the

business cards.

{¶33} Henson testified that he left Studio 4 and went to the gas station

across the street. (Id. at 227). When Trooper Derthick pulled Henson over,

Henson was with two passengers, but no evidence was presented that those

passengers had access to Henson’s clothing. In other words, no evidence was

presented that anyone at Studio 4 or that the passengers in his vehicle wore, used,

manipulated, or otherwise had dominion over his clothing. When asked why

someone would put cocaine in his pocket, Henson said he was “not even sure.”

(Id. at 240).

-13- Case No. 5-13-24

{¶34} Henson’s theory concerning how the cocaine came into his

possession—and, more importantly, the scant evidence supporting his theory—is

not compelling. See Paidousis at *3 (“Further, despite defendant’s general

assertion that family members, roommates and friends often share articles of

clothing, there was no evidence that defendant was with anyone at the time he was

found unconscious, or that any other individuals had dominion or control over the

jacket.”).

{¶35} Finally, Henson decided to testify in his defense, and the State in its

cross-examination impeached him with evidence of three prior felony convictions.

(Aug. 26-27, 2013 Tr., Vol. Two, at 230-233); (State’s Exs. 7-9). Although he

does not say so explicitly, Henson appears to suggest that the jury used for

improper purposes the evidence of his being stopped for drunk driving and his

criminal history. However, the trial court instructed the jury that the charge

against Henson was possession of cocaine and that the jury was not to consider

evidence of his prior drug offenses to prove his character “in order to show that he

acted in accordance with that character.” (Aug. 26-27, 2013 Tr., Vol. Two, at

267-268). “Absent evidence to the contrary, the jury is presumed to follow the

trial court’s instruction.” State v. Russell, 12th Dist. Butler No. CA2012-03-066,

2013-Ohio-1381, ¶ 64, citing State v. Standifer, 12th Dist. Warren No. CA2011-

-14- Case No. 5-13-24

07-071, 2012-Ohio-3132, ¶ 38. Henson does not direct us to “evidence to the

contrary,” and we have found none in our review of the record.

{¶36} Weighing the evidence and all reasonable inferences, and

considering the credibility of witnesses, we conclude that the jury, in resolving

conflicts in the evidence, did not clearly lose its way concerning the “knowingly”

element of the offense so as to create such a manifest miscarriage of justice that

Henson’s conviction must be reversed and a new trial ordered.

{¶37} Henson’s assignment of error is overruled.

{¶38} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

ROGERS and SHAW, J.J., concur.

/jlr

-15-