[Cite as State v. Kennard, 2024-Ohio-1820.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 2023CA00110 RICHARD KENNARD
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2022 CR 1528
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 8, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE D. COLEMAN BOND Prosecuting Attorney 116 Cleveland Avenue, N.W., Suite #600 Stark County, Ohio Canton, Ohio 44702
VICKI L. DESANTIS Appellate Division Assistant Prosecuting Attorney 110 Central Plaza South, Suite #510 Canton, Ohio 44702-1413 Stark County, Case No. 2023CA00110 2
Hoffman, J. {¶1} Defendant-appellant Richard Christopher Kennard appeals the judgment
entered by the Stark County Common Pleas Court convicting him following jury trial of
aggravated possession of drugs (R.C. 2925.11(A)(C)(1)(c)), possession of a fentanyl-
related compound (R.C. 2925.11(A)(C)(11)(d)), aggravated trafficking in drugs (R.C.
2925.03(A)(1)(A)(2)(C)(1)(d)), trafficking in a fentanyl-related compound (R.C.
2925.03(A)(1)(A)(2)(C)(9)(e)), two counts of assault (R.C. 2903.13(A)(C)(5)), and
obstructing official business (R.C. 2921.31(A)(B)), and sentencing him to an aggregate
term of imprisonment of seven to ten years. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 10 and 11, 2022, Deputy Tyler Miller of the Stark County Sheriff’s
Office was working a midnight shift, patrolling in Plain Township. The Deputy observed
a vehicle driven by Appellant make an illegal U-turn in the intersection of Rowland and
31st Street, and stopped Appellant’s vehicle.
{¶3} Despite orders to stay inside the vehicle, Appellant and his passenger,
T.W., exited the vehicle and remained outside. Deputy Michael Greissing came upon the
traffic stop while on patrol, and approached the passenger, while Deputy Miller spoke to
Appellant.
{¶4} Appellant refused to cooperate with Deputy Miller. He would not follow
commands, continued to talk on his cell phone, and would not provide identification upon
request. Appellant eventually provided his social security number. Deputy Miller learned
the vehicle belonged to Appellant’s mother, and Appellant’s driver’s license was
suspended. During a patdown search of Appellant, Deputy Miller found $3,000 in cash
on Appellant’s person, as well as a second cell phone. Stark County, Case No. 2023CA00110 3
{¶5} Meanwhile, T.W. cooperated with Deputy Greissing. T.W. stated he and
Appellant were going to get a four-wheeler, which had been stolen from T.W. When
Deputy Greissing walked over to assist Deputy Miller, he observed a large bag of a white
crystal substance, believed to be methamphetamine, on the hood of the vehicle. The bag
was located by the windshield wipers on the passenger’s side.
{¶6} Because suspected drugs were found and Appellant had a suspended
license, the deputies decided to tow the vehicle. Pursuant to protocol, the deputies
conducted an inventory search. Suspected methamphetamine was found on the inside
of the driver’s door, and two brown baggies of suspected fentanyl were found in the center
console.
{¶7} Appellant’s mother and girlfriend arrived on the scene. As the deputies
attempted to place Appellant in the police cruiser, Appellant braced himself so as to
prevent them from shutting the door. Appellant stated he was having a medical situation,
and asked for an ambulance to be called. Appellant told the deputies he would cooperate
with them if they released the $3,000 in cash he was carrying to his mother or girlfriend.
The deputies declined to release the cash.
{¶8} Appellant was compliant with the emergency medical technicians and was
transported to Aultman Hospital. Appellant was treated and released, but refused to leave
the hospital. Deputy Miller had handcuffed one of Appellant’s hands to the bed. When
the deputy and hospital security officers attempted to pull his other hand behind his back,
Appellant begin to fight. During the struggle, Deputy Miller sustained a pulled labrum in
his shoulder, which would require surgery to repair. Appellant also bit Deputy Miller.
When a security guard attempted to help remove Appellant from the bed, Appellant Stark County, Case No. 2023CA00110 4
punched the guard, who was diagnosed with a minor concussion and missed three days
of work.
{¶9} The drugs were submitted to the Stark County Crime Lab for testing. The
brown baggies recovered from the center console contained 3.62 grams and 7.04 grams
of fentanyl, above the bulk amount of one gram. The baggie recovered from the hood of
the car contained 55.7 grams of methamphetamine, above the bulk amount of three
grams. A second baggie1 contained 6.20 grams of methamphetamine.
{¶10} Appellant was indicted by the Stark County Grand Jury with three counts of
assault, obstructing official business, aggravated possession of drugs, possession of a
fentanyl-related compound, aggravated trafficking in drugs, and trafficking in a fentanyl-
related compound. The state entered a nolle prosequi as to one count of assault. The
case proceeded to jury trial in the Stark County Common Pleas Court.
{¶11} Appellant testified at trial he had just picked up T.W. to check out some
four-wheelers, when he was stopped by Deputy Miller. Appellant testified T.W. stayed
inside the car fifteen to twenty seconds after Appellant exited the car. Appellant was
aware T.W. sells and uses drugs. Appellant testified he became frustrated because he
was stopped by police, and the drugs inside the car did not belong to him. He testified
he has severe asthma and a metal rod in his leg from a past break. He testified he was
in severe pain from the officers trying to close the cruiser door on his leg. He testified he
did not intentionally hit or bite anyone at the hospital, but was in pain and upset because
he was denied the use of crutches.
1 It is unclear from the testimony where in the vehicle this baggie of methamphetamine was recovered. Stark County, Case No. 2023CA00110 5
{¶12} The jury found Appellant guilty on all counts and he was convicted in
accordance with the jury’s verdict. The trial court sentenced him to an aggregate term of
incarceration of seven to ten years, to be served consecutively with the sentences
imposed in two unrelated Stark County cases.
{¶13} It is from the July 28, 2023 judgment of the trial court Appellant prosecutes
his appeal, assigning as error:
I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST APPELLANT, AND THE
CONVICTION MUST BE REVERSED.
II. THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.
I., II.
{¶14} Appellant argues his convictions are against the manifest weight and
sufficiency of the evidence.
{¶15} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶16} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, Stark County, Case No. 2023CA00110 6
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in 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.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
Aggravated Possession of Drugs, Possession of a Fentanyl-Related
Compound
{¶17} Appellant argues the State did not present sufficient evidence he possessed
any of the drugs recovered from the vehicle. He argues the judgment is against the
manifest weight of the evidence because T.W. had access to the drugs in the center
console. He further argues because the large bag of methamphetamine was found on
the passenger side of the hood, the jury lost its way in finding the baggie was placed there
by him, rather than by T.W.
{¶18} As to the methamphetamine, Appellant was convicted of aggravated
possession of drugs in violation of R.C. 2925.11((A)(C)(1)(c):
(A) No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.
(C) Whoever violates division (A) of this section is guilty of one of the
following:
(1) If the drug involved in the violation is a compound, mixture,
preparation, or substance included in schedule I or II, with the exception of
marihuana, cocaine, L.S.D., heroin, any fentanyl-related compound, Stark County, Case No. 2023CA00110 7
hashish, and any controlled substance analog, whoever violates division (A)
of this section is guilty of aggravated possession of drugs. The penalty for
the offense shall be determined as follows:
(c) If the amount of the drug involved equals or exceeds five times
the bulk amount but is less than fifty times the bulk amount, aggravated
possession of drugs is a felony of the second degree, and the court shall
impose as a mandatory prison term a second degree felony mandatory
prison term.
{¶19} Appellant was also convicted of possession of a fentanyl-related compound
in violation of R.C. 2925.11(A)(C)(11)(d):
(A) No person shall knowingly obtain, possess, or use a controlled
(C) Whoever violates division (A) of this section is guilty of one of the
(11) If the drug involved in the violation is a fentanyl-related
compound and neither division (C)(9)(a) nor division (C)(10)(a) of this
section applies to the drug involved, or is a compound, mixture, preparation,
or substance that contains a fentanyl-related compound or is a combination
of a fentanyl-related compound and any other controlled substance and
neither division (C)(9)(a) nor division (C)(10)(a) of this section applies to the
drug involved, whoever violates division (A) of this section is guilty of Stark County, Case No. 2023CA00110 8
possession of a fentanyl-related compound. The penalty for the offense
shall be determined as follows:
(d) If the amount of the drug involved equals or exceeds one hundred
unit doses but is less than two hundred unit doses or equals or exceeds ten
grams but is less than twenty grams, possession of a fentanyl-related
compound is a felony of the second degree, and the court shall impose as
a mandatory prison term one of the prison terms prescribed for a felony of
the second degree.
{¶20} Possession is defined by R.C. 2925.01(K) as “having control over a thing or
substance, but [is] 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.” “Possession may be actual or constructive.” State v. Kuhn, 5th Dist. Fairfield No.
22CA40, 2023-Ohio-2740, 2023 WL 5091884, ¶ 18, quoting State v. Harvath, 5th Dist.
Stark No. 2005CA00330, 2006-Ohio-5549, ¶ 31, citing State v. Kobi, 122 Ohio App.3d
160, 174, 701 N.E.2d 420 (6th Dist.1997). To establish constructive possession of illegal
drugs, the evidence must prove the defendant was able to exercise dominion and control
over the contraband. Id., citing State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351
(1976). Dominion and control may be proven by circumstantial evidence alone. Id., citing
State v. Trembly, 137 Ohio App.3d 134, 141, 738 N.E.2d 93 (8th Dist. 2000).
Circumstantial evidence a defendant was located in very close proximity to readily usable
drugs may show constructive possession. Id., citing State v. Barr, 86 Ohio App.3d 227,
247-248, 620 N.E.2d 242 (8th Dist. 1993). Stark County, Case No. 2023CA00110 9
{¶21} In the instant case, while the vehicle belonged to Appellant’s mother, he
had control over the vehicle on the night in question. Although the large baggie of
methamphetamine was found on the hood of the car on the passenger side, the State
presented evidence both occupants of the vehicle exited after the stop, despite being
ordered to stay in the vehicle. Deputy Greissing testified suspected methamphetamine
was observed on the driver’s door and seat, and suspected fentanyl was recovered from
the center console, both areas of the car to which Appellant had access. We find the
State presented evidence from which a reasonable trier of fact could conclude Appellant
possessed the drugs recovered by police.
{¶22} Appellant argues T.W. was acting suspicious, yet not charged. He argues
because the officer did not see him throw the drugs on the hood of the car, the drugs
must have been placed there by T.W. He argues T.W. remained in the car 15-20 seconds
after Appellant exited, giving T.W. opportunity to place the drugs in the center console.
He argues the drugs were not tested for DNA or fingerprint evidence, and further despite
the testimony drugs were found in the driver’s door, the witness from the crime lab testified
the drugs were all labeled as coming from the hood of the car or the center console.
{¶23} By Appellant’s own testimony, he picked up T.W. just before he was
stopped by police. Although the record is not clear if the drugs were among those
collected and tested, both deputies testified a substance which looked like
methamphetamine was located inside the driver’s door. Although Deputy Miller testified
he did not see Appellant toss anything on the hood of the car, he also testified he could
not see clearly because Appellant had his back to him most of the time. We find the jury Stark County, Case No. 2023CA00110 10
did not lose its way in finding Appellant constructively possessed the drugs recovered
from the vehicle.
Aggravated Trafficking in Drugs, Trafficking in a Fentanyl-Related
{¶24} Appellant was convicted of aggravated trafficking in drugs and trafficking in
a fentanyl-related compound in violation of R.C. 2925.03:
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled
substance analog;
(2) Prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance or a controlled substance
analog, when the offender knows or has reasonable cause to believe that
the controlled substance or a controlled substance analog is intended for
sale or resale by the offender or another person.
(C) Whoever violates division (A) of this section is guilty of one of the
(1) If the drug involved in the violation is any compound, mixture,
preparation, or substance included in schedule I or schedule II, with the
exception of marihuana, cocaine, L.S.D., heroin, any fentanyl-related
compound, hashish, and any controlled substance analog, whoever violates
division (A) of this section is guilty of aggravated trafficking in drugs. The
penalty for the offense shall be determined as follows: Stark County, Case No. 2023CA00110 11
(d) Except as otherwise provided in this division, if the amount of the
drug involved equals or exceeds five times the bulk amount but is less than
fifty times the bulk amount, aggravated trafficking in drugs is a felony of the
second degree, and the court shall impose as a mandatory prison term a
second degree felony mandatory prison term. If the amount of the drug
involved is within that range and if the offense was committed in the vicinity
of a school, in the vicinity of a juvenile, or in the vicinity of a substance
addiction services provider or a recovering addict, aggravated trafficking in
drugs is a felony of the first degree, and the court shall impose as a
mandatory prison term a first degree felony mandatory prison term.
(9) If the drug involved in the violation is a fentanyl-related compound
or a compound, mixture, preparation, or substance containing a fentanyl-
related compound and division (C)(10)(a) of this section does not apply to
the drug involved, whoever violates division (A) of this section is guilty of
trafficking in a fentanyl-related compound. The penalty for the offense shall
be determined as follows:
(e) Except as otherwise provided in this division, if the amount of the
drug involved equals or exceeds one hundred unit doses but is less than
two hundred unit doses or equals or exceeds ten grams but is less than
twenty grams, trafficking in a fentanyl-related compound is a felony of the
second degree, and the court shall impose as a mandatory prison term one
of the prison terms prescribed for a felony of the second degree. If the
amount of the drug involved is within that range and if the offense was Stark County, Case No. 2023CA00110 12
committed in the vicinity of a school, in the vicinity of a juvenile, or in the
vicinity of a substance addiction services provider or a recovering addict,
trafficking in a fentanyl-related compound is a felony of the first degree, and
the court shall impose as a mandatory prison term one of the prison terms
prescribed for a felony of the first degree.
{¶25} Appellant restates his arguments concerning possession of the
methamphetamine and fentanyl. For the reasons stated above regarding his convictions
of the possession offenses, we find the State presented sufficient evidence the drugs
were in his possession, and the judgment is not against the manifest weight of the
evidence. Both deputies testified the amount of methamphetamine and fentanyl
recovered are indicative of trafficking and sales, rather than personal use. The officers
further testified the large amount of cash in Appellant’s possession and his possession of
two cell phones are indicative of trafficking. We find the convictions are supported by
sufficient evidence, and are not against the manifest weight of the evidence.
Assault, Obstructing Official Business
{¶26} Appellant was convicted of two counts of assault in violation of R.C.
2903.13(A), which provides, “No person shall knowingly cause or attempt to cause
physical harm to another or to another's unborn.” He was also convicted of obstructing
official business in violation of R.C. 2921.31(A), which provides, “No person, without
privilege to do so and with purpose to prevent, obstruct, or delay the performance by a
public official of any authorized act within the public official's official capacity, shall do any Stark County, Case No. 2023CA00110 13
act that hampers or impedes a public official in the performance of the public official's
lawful duties.”
{¶27} With regards to these convictions, Appellant argues he testified he did not
intentionally strike, bite, or fight with anyone, but was in severe pain because of the
problems with his leg, and was having an asthma attack.
{¶28} The State presented evidence during the initial traffic stop, Appellant initially
refused to give Deputy Miller identification, and would not get off his cell phone during his
interaction with the officer. The State presented evidence Appellant refused to get inside
the cruiser, and also refused to leave the hospital bed when discharged. The State
presented evidence Appellant fought with police and hospital security, during which
Deputy Miller suffered a shoulder injury requiring surgery. In addition, Appellant bit
Deputy Miller and struck a security guard, causing the security guard to suffer a
concussion. We find the State presented sufficient from which the jury could find
Appellant guilty of assault on both the security guard and Deputy Miller, and from which
the jury could find Appellant guilty of obstructing official business for his actions at the
scene of the stop and at the hospital.
{¶29} Appellant does not specifically challenge the sufficiency of the State’s
evidence, but rather points to his own testimony he did not intentionally fight with anyone
or injure anyone. However, the credibility of the witnesses is an issue for the trier of fact.
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact “has the
best opportunity to view the demeanor, attitude, and credibility of each witness, something
that does not translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415,
418, 674 N.E.2d 1159 (1997). We find the jury did not lose its way in finding Appellant Stark County, Case No. 2023CA00110 14
guilty despite his self-serving testimony concerning his intentions, and the judgments of
conviction are not against the manifest weight of the evidence.
{¶30} The first and second assignments of error are overruled. The judgment of
the Stark County Common Pleas Court is affirmed.
By: Hoffman, J. Delaney, P.J. and Wise, J. concur