[Cite as State v. Koon, 2017-Ohio-8599.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
STATE OF OHIO, : Case No. 17CA5
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY BRIAN KOON, : RELEASED: 11/06/2017 Defendant-Appellant, : APPEARANCES:
Brian Koon, Madison County Correctional Institution, London, Ohio, pro se appellant.
Benjamin E. Fickel, Hocking County Prosecuting Attorney, and Jorden M. Meadows, Hocking County Assistant Prosecuting Attorney, Logan, Ohio, for appellee. Harsha, J. {¶1} Following his conviction for possession of heroin, Brian C. Koon filed a
petition for postconviction relief relying on the Supreme Court of Ohio’s decision in State
v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319, 81 N.E.3d 405, to argue that his
conviction was not supported by sufficient evidence and was against the manifest
weight of the evidence. The trial court denied the petition.
{¶2} Koon asserts that the trial court erred in denying the petition. We reject
Koon’s assertion because, as the trial court concluded, the Supreme Court of Ohio
reconsidered and vacated its decision in Gonzales. Moreover, res judicata bars Koon
from contesting the sufficiency or manifest weight of the evidence supporting his
conviction. We overrule his assignment of error and affirm the judgment of the trial
court denying his petition for postconviction relief.
I. FACTS Hocking App. No. 17CA5 2
{¶3} The Hocking County Grand Jury returned an indictment charging Brian C.
Koon with one count of trafficking in heroin, one count of possession of heroin, and one
count of endangering children. Koon pleaded not guilty to the charges, and the case
proceeded to a jury trial.
{¶4} The state introduced evidence that Koon had been a passenger in a
vehicle that had rolled over several times and discharged many items from the inside.
State troopers who arrived at the scene found a “loaded” syringe containing .403 grams
of heroin, additional heroin weighing 19.452 grams, and other evidence of drug use
located within the “debris field” left by the accident involving the vehicle. The troopers
witnessed Koon diligently searching the field for the items thrown from the vehicle
instead of attending to his injured 12-year-old son, who was lying on the pavement
screaming in pain.
{¶5} Koon acknowledged the ownership of the items that were lying in the
debris field by telling a trooper that “his whole life was ruined and scattered on the
ground.” The troopers noticed a sticky brown substance on Koon’s shirt that he claimed
was mud or dirt from the accident, but which one of the troopers believed, based on his
experience, was liquefied heroin.
{¶6} The jury returned a verdict finding Koon guilty of possession of drugs and
endangering children and acquitting him of the drug trafficking charge. For the drug
possession charge, the jury returned a special verdict finding that Koon possessed 10
grams of heroin.
{¶7} Following the trial Koon filed a motion for new trial, arguing that the jury’s
finding that he possessed 10 grams of heroin was not supported by sufficient evidence. Hocking App. No. 17CA5 3
He also filed a motion for acquittal contending that his conviction for endangering
children was not supported by sufficient evidence. The trial court granted Koon’s
motion for acquittal on the endangering children charge, but denied his motion for new
trial on the possession of heroin conviction.
{¶8} After sentencing Koon appealed, arguing in part that his conviction for
possession of heroin was not supported by sufficient evidence and was against the
manifest weight of the evidence. He also claimed that the trial court erred by denying
his motion for new trial. We rejected Koon’s claims, finding that in considering the
evidence in a light most favorable to the state, sufficient evidence supported the court’s
determination that the state introduced the essential elements of the crime of
possession of heroin. State v. Koon, 4th Dist. Hocking No. 15CA17, 2016-Ohio-416, ¶
24. We also found that the jury did not clearly lose its way or create a manifest
miscarriage of justice. Id. We noted that the “state introduced evidence that the heroin
found in the debris field exceeded 10 grams, so the jury’s determination that Koon had
constructive possession of 10 grams of the heroin was supported by the evidence.” Id.
at ¶ 23. “[T]he state introduced evidence from which the jury could have reasonably
concluded that he possessed as much as 19 grams of the heroin recovered from the
scene of the accident.” Id. at ¶ 34.
{¶9} The Supreme Court of Ohio did not accept Koon’s discretionary appeal
from our decision, State v. Koon, 146 Ohio St.3d 1416, 2016-Ohio-3390, 51 N.E.3d 660,
and a federal district court dismissed his habeas corpus petition raising the same
evidentiary issues. Koon v. Warden, Madison Corr. Inst., S.D. Ohio No. 2:16-CV-
00950, 2017 WL 1106372 (Mar. 24, 2017). Hocking App. No. 17CA5 4
{¶10} In 2017, Koon filed a petition for postconviction relief that claimed that his
conviction for possession of heroin should be vacated because based on the Supreme
Court of Ohio’s decision in State v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319, 81
N.E.3d 405, it was not based on sufficient evidence and was against the manifest
weight of the evidence. After the state filed a memorandum in opposition noting that the
Supreme Court had vacated its decision in Gonzales, the trial court denied the petition.
II. ASSIGNMENT OF ERROR
{¶11} Koon assigns the following error for our review:
THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO CONVICT APPELLANT OF POSSESSING HEROIN WEIGHING 10 GRAMS WHEN THE SAMPLE, WHEN WEIGHED, CONTAINED 19.855 GRAMS.
III. STANDARD OF REVIEW
{¶12} The postconviction relief process is a collateral civil attack on a criminal
judgment rather than an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279,
281, 714 N.E.2d 905 (1999). Postconviction relief is not a constitutional right; instead, it
is a narrow remedy that gives the petitioner no more rights than those granted by
statute. Id. It is a means to resolve constitutional claims that cannot be addressed on
direct appeal because the evidence supporting the claims is not contained in the record.
State v. Knauff, 4th Dist. Adams No. 13CA976, 2014–Ohio–308, ¶ 18.
{¶13} “[A] trial court's decision granting or denying a postconviction relief petition
filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a
reviewing court should not overrule the trial court's finding on a petition for
postconviction relief that is supported by competent and credible evidence.” State v.
Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. A trial court Hocking App. No. 17CA5 5
abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable. In
re H. V., 138 Ohio St.3d 408, 2014-Ohio-812, 7 N.E.3d 1173, ¶ 8.
IV. LAW AND ANALYSIS
{¶14} In his assignment of error Koon asserts that his conviction for heroin
possession was not supported by sufficient evidence.
{¶15} We reject Koon’s assertion.
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[Cite as State v. Koon, 2017-Ohio-8599.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
STATE OF OHIO, : Case No. 17CA5
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY BRIAN KOON, : RELEASED: 11/06/2017 Defendant-Appellant, : APPEARANCES:
Brian Koon, Madison County Correctional Institution, London, Ohio, pro se appellant.
Benjamin E. Fickel, Hocking County Prosecuting Attorney, and Jorden M. Meadows, Hocking County Assistant Prosecuting Attorney, Logan, Ohio, for appellee. Harsha, J. {¶1} Following his conviction for possession of heroin, Brian C. Koon filed a
petition for postconviction relief relying on the Supreme Court of Ohio’s decision in State
v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319, 81 N.E.3d 405, to argue that his
conviction was not supported by sufficient evidence and was against the manifest
weight of the evidence. The trial court denied the petition.
{¶2} Koon asserts that the trial court erred in denying the petition. We reject
Koon’s assertion because, as the trial court concluded, the Supreme Court of Ohio
reconsidered and vacated its decision in Gonzales. Moreover, res judicata bars Koon
from contesting the sufficiency or manifest weight of the evidence supporting his
conviction. We overrule his assignment of error and affirm the judgment of the trial
court denying his petition for postconviction relief.
I. FACTS Hocking App. No. 17CA5 2
{¶3} The Hocking County Grand Jury returned an indictment charging Brian C.
Koon with one count of trafficking in heroin, one count of possession of heroin, and one
count of endangering children. Koon pleaded not guilty to the charges, and the case
proceeded to a jury trial.
{¶4} The state introduced evidence that Koon had been a passenger in a
vehicle that had rolled over several times and discharged many items from the inside.
State troopers who arrived at the scene found a “loaded” syringe containing .403 grams
of heroin, additional heroin weighing 19.452 grams, and other evidence of drug use
located within the “debris field” left by the accident involving the vehicle. The troopers
witnessed Koon diligently searching the field for the items thrown from the vehicle
instead of attending to his injured 12-year-old son, who was lying on the pavement
screaming in pain.
{¶5} Koon acknowledged the ownership of the items that were lying in the
debris field by telling a trooper that “his whole life was ruined and scattered on the
ground.” The troopers noticed a sticky brown substance on Koon’s shirt that he claimed
was mud or dirt from the accident, but which one of the troopers believed, based on his
experience, was liquefied heroin.
{¶6} The jury returned a verdict finding Koon guilty of possession of drugs and
endangering children and acquitting him of the drug trafficking charge. For the drug
possession charge, the jury returned a special verdict finding that Koon possessed 10
grams of heroin.
{¶7} Following the trial Koon filed a motion for new trial, arguing that the jury’s
finding that he possessed 10 grams of heroin was not supported by sufficient evidence. Hocking App. No. 17CA5 3
He also filed a motion for acquittal contending that his conviction for endangering
children was not supported by sufficient evidence. The trial court granted Koon’s
motion for acquittal on the endangering children charge, but denied his motion for new
trial on the possession of heroin conviction.
{¶8} After sentencing Koon appealed, arguing in part that his conviction for
possession of heroin was not supported by sufficient evidence and was against the
manifest weight of the evidence. He also claimed that the trial court erred by denying
his motion for new trial. We rejected Koon’s claims, finding that in considering the
evidence in a light most favorable to the state, sufficient evidence supported the court’s
determination that the state introduced the essential elements of the crime of
possession of heroin. State v. Koon, 4th Dist. Hocking No. 15CA17, 2016-Ohio-416, ¶
24. We also found that the jury did not clearly lose its way or create a manifest
miscarriage of justice. Id. We noted that the “state introduced evidence that the heroin
found in the debris field exceeded 10 grams, so the jury’s determination that Koon had
constructive possession of 10 grams of the heroin was supported by the evidence.” Id.
at ¶ 23. “[T]he state introduced evidence from which the jury could have reasonably
concluded that he possessed as much as 19 grams of the heroin recovered from the
scene of the accident.” Id. at ¶ 34.
{¶9} The Supreme Court of Ohio did not accept Koon’s discretionary appeal
from our decision, State v. Koon, 146 Ohio St.3d 1416, 2016-Ohio-3390, 51 N.E.3d 660,
and a federal district court dismissed his habeas corpus petition raising the same
evidentiary issues. Koon v. Warden, Madison Corr. Inst., S.D. Ohio No. 2:16-CV-
00950, 2017 WL 1106372 (Mar. 24, 2017). Hocking App. No. 17CA5 4
{¶10} In 2017, Koon filed a petition for postconviction relief that claimed that his
conviction for possession of heroin should be vacated because based on the Supreme
Court of Ohio’s decision in State v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319, 81
N.E.3d 405, it was not based on sufficient evidence and was against the manifest
weight of the evidence. After the state filed a memorandum in opposition noting that the
Supreme Court had vacated its decision in Gonzales, the trial court denied the petition.
II. ASSIGNMENT OF ERROR
{¶11} Koon assigns the following error for our review:
THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO CONVICT APPELLANT OF POSSESSING HEROIN WEIGHING 10 GRAMS WHEN THE SAMPLE, WHEN WEIGHED, CONTAINED 19.855 GRAMS.
III. STANDARD OF REVIEW
{¶12} The postconviction relief process is a collateral civil attack on a criminal
judgment rather than an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279,
281, 714 N.E.2d 905 (1999). Postconviction relief is not a constitutional right; instead, it
is a narrow remedy that gives the petitioner no more rights than those granted by
statute. Id. It is a means to resolve constitutional claims that cannot be addressed on
direct appeal because the evidence supporting the claims is not contained in the record.
State v. Knauff, 4th Dist. Adams No. 13CA976, 2014–Ohio–308, ¶ 18.
{¶13} “[A] trial court's decision granting or denying a postconviction relief petition
filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a
reviewing court should not overrule the trial court's finding on a petition for
postconviction relief that is supported by competent and credible evidence.” State v.
Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. A trial court Hocking App. No. 17CA5 5
abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable. In
re H. V., 138 Ohio St.3d 408, 2014-Ohio-812, 7 N.E.3d 1173, ¶ 8.
IV. LAW AND ANALYSIS
{¶14} In his assignment of error Koon asserts that his conviction for heroin
possession was not supported by sufficient evidence.
{¶15} We reject Koon’s assertion. First, his postconviction relief petition was
premised on the Supreme Court of Ohio’s decision in Gonzales, 150 Ohio St.3d 261,
2016-Ohio-8319, 81 N.E.3d 405, where the court held that in prosecuting cocaine-
possession offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed
substances, the state must prove that the weight of the actual cocaine, excluding the
weight of any filler materials, meets the statutory threshold. But as the state argued and
the trial court concluded, the Supreme Court vacated that decision on reconsideration,
holding that the “entire ‘compound, mixture, preparation, or substance,’ including any
fillers that are part of the usable drug, must be considered for the purpose of
determining the appropriate penalty for cocaine possession under R.C. 2925.11(C)(4).”
State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 405, ¶ 3. Therefore,
Koon’s postconviction petition was based on a case that is no longer good law.
{¶16} Second, Koon’s attack on the sufficiency or manifest weight of the
evidence to support his conviction was barred by res judicata. “ ‘Under the doctrine of
res judicata, a final judgment of conviction bars a convicted defendant who was
represented by counsel from raising and litigating in any proceeding except an appeal
from that judgment, any defense or claimed lack of due process that was raised or could
have been raised by the defendant at the trial, * * * or on appeal from that judgment.’ ” Hocking App. No. 17CA5 6
State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996), quoting State v. Perry,
10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus; see also
State v. Davis, 139 Ohio St.3d 122, 2014-Ohio-1615, 9 N.E.3d 1031, ¶ 28. “ ‘Res
judicata does not, however, apply only to direct appeals, but to all postconviction
proceedings in which an issue was or could have been raised.’ ” State v. Heid, 4th Dist.
Scioto No. 15CA3710, 2016-Ohio-2756, ¶ 18, quoting State v. Montgomery, 2013-Ohio-
4193, 997 N.E.2d 579, ¶ 42 (8th Dist.). He raised these issues unsuccessfully on
appeal and in his federal habeas corpus action; he could not relitigate them in his
petition for postconviction relief.
{¶17} Therefore, because res judicata barred Koon’s claims and the case he
cited in support of his petition was vacated, the trial court did not abuse its discretion by
denying him the requested postconviction relief. We overrule his assignment of error.
V. CONCLUSION
{¶18} Having overruled Koon’s assignment of error, we affirm the judgment of
the trial court denying his petition for postconviction relief.
JUDGMENT AFFIRMED. Hocking App. No. 17CA5 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgement & Opinion.
For the Court
BY: ________________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.