[Cite as State v. McVey, 2012-Ohio-2520.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: STATE OF OHIO : Patricia A. Delaney, P.J. : W. Scott Gwin, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 11CA0077 : : DANIEL L. McVEY, II : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Licking County Court of Common Pleas Case No. 10CR612
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 4, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT WILLIAM CRAMER Licking County Prosecutor 470 Olde Worthington Road, Ste. 200 Westerville, Ohio 43082 BY: CHRISTOPHER A. REAMER Assistant Prosecuting Attorney 20 S. Second Street, Fourth Floor Newark, Ohio 43055 [Cite as State v. McVey, 2012-Ohio-2520.]
Edwards, J.
{¶1} Defendant-appellant, Daniel McVey, appeals his conviction and sentence
from the Licking County Court of Common Pleas on one count of weapons under
disability and a firearm specification. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 29, 2010, the Licking County Grand Jury indicted appellant on
one count of illegal manufacture of drugs (methamphetamine) in violation of R.C.
2925.04(A)(C)(3)(a), a felony of the second degree, one count of illegal assembly or
possession of chemicals for the manufacture of drugs in violation of R.C.
2925.041(A)(C)(1)(b), a felony of the third degree, one count of weapons under
disability in violation of R.C. 2923.13(A)(3), a felony of the third degree, and one count
of aggravated trafficking in drugs (methamphetamine) in violation of R.C.
2925.03(A)(1)(C)(1)(a), a felony of the fourth degree. The charge of aggravated
trafficking in drugs was accompanied by a firearm specification. At his arraignment on
November 9, 2011, appellant entered a plea of not guilty to the charges.
{¶3} Subsequently, a jury trial commenced on April 20, 2011. The following
testimony was adduced at trial.
{¶4} Kris Kimble of the Central Ohio Drug Enforcement Task Force testified
that he had worked with a confidential informant named Dino Thorpe. After Thorpe got
into trouble for purchasing pseudo ephedrine, which is used in the manufacture of
methamphetamine, and was charged with illegal assembly of chemicals, Thorpe
became a confidential informant in exchange for a reduced sentence. Kimble testified
that, on October 20, 2010, Thorpe was to make arranged buys from specified Licking County App. Case No. 11CA0077 3
individuals and that appellant originally was not one of those individuals. Kimble further
testified that when he spoke with Thorpe on the phone, Thorpe told him that appellant
was currently manufacturing methamphetamine at his residence. Kimble testified that
he then conducted surveillance at appellant’s house and that appellant drove to the
residence of John Sampson at 30 Westview. The following is an excerpt from Kimble’s
testimony:
{¶5} “Q. What was your understanding - - it’s actually owned by a John
Sampson?
{¶6} “A. Where this took place, it is owned by John Sampson.
{¶7} “Q. What was your understanding what was going on at 30 Westview prior
to this controlled buy?
{¶8} “A. The understanding we had was Dino was supposedly taking care of
this residence for an individual who was currently incarcerated. That individual had
given us permission to go inside, written and verbal, through the jail he was in, and our
understanding from the CI [confidential informant] was there were several individuals in
that residence with possible stolen property from a burglary.” Transcript at 155-156.
{¶9} According to Kimble and to Detective Doug Bline, of the Newark Police
Department, who was assigned to the Central Ohio Drug Enforcement Task Force,
Thorpe had the keys to the Westview property.
{¶10} On cross-examination, Kimble testified that the maximum charge that
Thorpe faced for illegal assembly of chemicals was eight years and that Thorpe was
supposed to make a couple of buys from three individuals. Two of the buys were to be
from Shane Huffman and two from Betty McVey, appellant’s mother. Huffman was Licking County App. Case No. 11CA0077 4
present at the Westview address on the day that his buy took place. Kimble further
testified that Thorpe had told him that there were several other people in the house and
that there had been situations in the past where they were trading and selling items with
each other in Sampson’s house.
{¶11} Dino Thorpe testified that he lived next door to 30 Westview, which was
owned by John Sampson. Thorpe testified that, on October 20, 2010, Sampson was in
jail and Thorpe was painting a building for him. According to Thorne, Sampson had
asked him to watch over his house and feed his dogs while Sampson was in jail.
{¶12} Thorpe testified that there were other individuals in and out of Sampson’s
house, which was unlocked. He testified that Shane Huffman came and told him that
Sampson had said that Huffman could stay there a couple of days. Thorne testified that,
on October 20th, appellant was at the house along with Ron Fulk, Thorpe, a guy with
Huffman and two girls in a green van.
{¶13} At trial, Thorpe testified that he had problems with drug addiction in the
past and had been addicted to cocaine in the 1990s. He further testified that he had
done methamphetamine until he found out he had cancer in July of 2010. Thorpe had
been arrested for buying pseudo ephedrine pills after July and, in order to have his
charges reduced, had entered into an agreement to become a confidential informant.
He testified that the main target of the agreement was Shane Huffman and that he
thought that appellant’s mother also was a target as was Chad Cook. Thorpe testified
that he made some buys off of Huffman.
{¶14} At trial, Thorpe testified that he had felonies for theft and falsification and
had had drug charges twenty years previously. He testified that four years before he Licking County App. Case No. 11CA0077 5
had pleaded guilty to theft. Thorpe testified that, on October 20, 2010, appellant and
Ron Fulk spent the night with him at his home. He testified that while he had had
problems with appellant in the past, he had no problems with appellant on October 20,
2010. According to Thorpe, on the morning of October 20, 2010, he woke up and heard
appellant and two others talking about cooking methamphetamine. At some point, the
people left.
{¶15} Later, when Thorpe was at Sampson’s painting a building, a green van
pulled in and Shane Huffman got out. A man and two women were with him. Huffman
asked Thorpe if appellant was back and after being told no, the group carried guns,
camping and other stuff into Sampson’s house. Thorpe testified that when he asked
Huffman what he was doing, Huffman indicated that he had robbed someone the night
before. Thorpe testified that he then called the detective who was his contact, indicated
that Huffman was there and that there were weapons in the house and was told to stay
out of Sampson’s house until further order.
{¶16} According to Thorpe, another detective called him shortly thereafter and
told him to walk down the road and talk to the detective, who was parked nearby. The
detective asked Thorpe to make a buy from appellant and then searched Thorpe, gave
him a recording device and gave Thorpe money for the buy. The detective told Thorpe
to go in and ask appellant if he could buy up to two grams. Thorpe testified that he
walked into Sampson’s house without knocking and that appellant, Shane Huffman and
Ron Fulk were inside. Thorpe then purchased 1.8 grams of methamphetamine for
$200.00. At the time of the buy, Huffman was at the other end of the kitchen table and
Ron Fulk was to the left of the same while appellant was at the table standing up. Licking County App. Case No. 11CA0077 6
Thorpe testified that there was a rifle to the left of him leaning against the wall over by
where Ron Fulk was standing. He further testified that he saw a small pistol on the table
down by Huffman. The following is an excerpt from his testimony:
{¶17} “A. A small, looked like a small pistol was still on the table. That was
down by Shane.
{¶18} “Q. On the table?
{¶19} “A. Yes.
{¶20} “Q. Okay, and is there any conversations going on about the firearms as
you’re in there?
{¶21} “A. No, not really - - not really. I mean I never heard nothing then.
{¶22} “Q. Okay.
{¶23} “A. I just went in to do what I was asked to do and then leave.
{¶24} “Q. Did you see anything else? Did you see any other firearms inside?
{¶25} “A. I seen a - - I seen a rifle they had. They said it was a 30.06. The pistol
- - now the first time I was over there, I seen the other gun before Danny got there when
I said the dirty guy and the two girls were in there.
{¶26} “Q. Okay.
{¶27} “A. And they started carrying stuff in, and that’s when I called Kris and said
there are weapons in there.
{¶28} “Q. Uh huh.
{¶29} “A. I seen three guns then.
{¶30} “Q. Okay. That gun’s gone by the time you go back?
{¶31} “A. That gun was gone, yeah.” Transcript at 213-214. Licking County App. Case No. 11CA0077 7
{¶32} Thorpe testified that he then walked out and met the detective and handed
the drugs to him. Before meeting up with the detective, Thorpe stopped at his house to
get cigarettes.
{¶33} On cross-examination, Thorpe testified that he had been charged with
illegal assembly, a felony of the third degree, and that, in exchange for his agreement
as a confidential informant, the charge was to be reduced to a felony of the fifth degree.
He testified that he had bought the pseudo ephedrine for a friend in order to get money
for medicine. Thorpe further denied having a key to Sampson’s house and testified that
there was no key to the same. He testified that he did not let Shane Huffman into
Sampson’s house and that Huffman had been there before, including the previous day.
Thorpe testified that he then saw Huffman carrying in guns, tools and camping
equipment and that appellant was not present at such time and did not come over until
much later. Thorpe also testified that Huffman was trying to sell a 30.06 rifle for $150.00
and that the guy who took the shotgun said that he had sold it at Buckeye Lake. Thorpe,
when asked, testified that appellant never said that the guns were his or that he was
involved in acquiring them.
{¶34} Leonard Laughman testified at trial that he was friends with appellant and
had known him for about two years. He testified that in October of 2010, he had contact
with appellant a single time and that he came into contact with members of the Central
Ohio Drug Enforcement Task Force on the same date. On the day in question,
Laughman was with Laurie Hoffman and appellant. He testified that he came into
contact with appellant at Dino Thorpe’s house and that Laurie drove them there.
Laughman testified that he spoke with appellant about purchasing methamphetamine Licking County App. Case No. 11CA0077 8
and that he then went to appellant’s mother’s house and purchased a gram. They then
drove back to Thorpe’s house. According to Laughman, appellant did not go into
Thorpe’s house. Laughman and Laurie picked up Thorpe’s girlfriend and drove her to a
gas station to purchase cigarettes. Laughman testified that he did not observe
appellant with any weapons.
{¶35} After a SWAT team arrived to search Sampson’s house, they found
appellant, Fulk and Huffman inside the same. Appellant had digital scales and $200.00
in cash in his pocket. A 30.06 rifle was found leaning up against a filing cabinet in the
corner of the kitchen. Testimony was adduced that the rifle was six feet from the kitchen
table. After completing a search and inventory at the 30 Westview address, detectives
went to the house where appellant had been living until he was kicked out on the day of
his arrest and spoke to appellant’s father. During a search, they found evidence of a
meth lab in the garage, including salt, coffee filters, a hydrochloric gas generator, which
was a plastic bottle with tubing inserted into the top, and drain cleaner.
{¶36} At trial, the parties stipulated that appellant had a prior felony conviction
that precluded him from possessing a firearm.
{¶37} At the conclusion of the evidence and the end of deliberations, the jury, on
April 21, 2011, found appellant not guilty of illegal manufacture of drugs and illegal
assembly or possession of chemicals for the manufacture of drugs, but guilty of
aggravated trafficking in drugs and having a weapon while under a disability. The jury
further found that appellant had a firearm on or about his person or under his control
while committing the offense of aggravated trafficking. Pursuant to a Judgment of Licking County App. Case No. 11CA0077 9
Sentence filed on June 21, 2011, appellant was sentenced to an aggregate prison
sentence of four (4) years and eleven (11) months.
{¶38} Appellant now raises the following assignments of error on appeal:
{¶39} “I. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS
AND FAIR TRIAL AS GUARANTEED BY THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND
16, ARTICLE I OF THE OHIO CONSTITUTION BECAUSE THE TRIAL COURT
MISLED THE JURY BY INSTRUCTING THE JURORS THAT THEY COULD FIND
APPELLANT TO BE IN CONSTRUCTIVE POSSESSION OF A RIFLE MERELY BY
FINDING THAT HE HAD THE ABILITY TO EXERCISE DOMINION AND CONTROL
OVER IT.
{¶40} “II. APPELLANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL
UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION
BECAUSE TRIAL COUNSEL PERFORMED DEFICIENTLY BY FAILING TO OBJECT
TO THE MISLEADING SUPPLEMENTAL JURY INSTRUCTION REGARDING
CONSTRUCTIVE POSSESSION OF THE FIREARM.
{¶41} “III. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS
AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO
CONSTITUTION BECAUSE THE PROSECUTION FAILED TO PRESENT
SUFFICIENT EVIDENCE THAT HE POSSESSED A FIREARM TO SUPPORT THE Licking County App. Case No. 11CA0077 10
CONVICTION FOR HAVING A WEAPON WHILE UNDER DISABILITY AND THE
TRUE FINDING ON THE FIREARM SPECIFICATION.
{¶42} “IV. THE VERDICT OF GUILTY ON THE CHARGE OF HAVING A
WEAPON UNDER DISABILITY AND THE TRUE FINDING ON THE FIREARM
SPECIFICATION ARE NOT SUPPORTED BY THE WEIGHT OF EVIDENCE.”
I
{¶43} Appellant, in his first assignment of error, argues that he was deprived of
his rights to due process and a fair trial because the trial court erred in instructing the
jury that they could find appellant to be in constructive possession of the rifle merely by
finding that he had the ability to exercise dominion and control over the same.
{¶44} Crim.R. 30(A) provides that a party may not assign as error the giving or
failure to give an instruction unless he objects before the jury retires to consider its
verdict. Where a defendant fails to raise a timely objection to the giving or failure to give
an instruction, the defendant has waived all but plain error. State v. Adams, 62 Ohio
St.2d 151, 154, 404 N.E.2d 144 (1980). An alleged error “does not constitute a plain
error ... unless, but for the error, the outcome of the trial clearly would have been
otherwise.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804, (1978), ¶ two of the
syllabus. Because appellant never raised any objection to the trial court's instruction to
the jury, appellant has waived all but plain error.
{¶45} At trial, the trial court gave the following instruction on constructive
possession:
{¶46} “Constructive Possession. Possession may be actual or constructive. A
person has constructive possession of an item when he has knowledge of the presence Licking County App. Case No. 11CA0077 11
of the item, and the ability to control its use and/or exercise dominion over it. While
ownership may constitute possession, ownership is not necessary. A person may
possess or control property belonging to another.
{¶47} “It is not necessary that there be actual physical possession. Possession
may be constructive. Constructive possession exists when the individual possesses
dominion and control over an object even though the object may not be in his immediate
physical possession.” Transcript at 423-424. (Emphasis added).
{¶48} Possession “means having control over a thing or substance.” R.C.
2925.01(K). Possession may not be inferred solely from mere access to the thing or
substance, or occupation of the premises upon which the thing or substance was found.
Id. Possession may be actual or constructive. State v. McShan, 77 Ohio App.3d
781,783, 603 N.E.2d 1076, (8th Dist. 1991). Constructive possession is demonstrated if
the contraband is in a defendant's dominion or control. Id. at 783. State v. Wolery, 46
Ohio St.2d 316, 332, 348 N.E.2d 351, (1976). “A person may constructively possess a
substance or object if he ‘knowingly exercise[s] dominion and control over an object,
even though that object may not be within his immediate physical possession[,] or [if he
has] knowledge of the presence of the object.’” State v. Woodson, 9th Dist. No. 07 CA
0044, 2008-Ohio-1469, ¶20, citing State v. Hilton, 9th Dist. No 21624, 2004-Ohio-1418,
at paragraph 16 quoting State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362,
(1982), ¶ one of the syllabus. The State may prove dominion and control through
circumstantial evidence. See State v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93 (8th
Dist. 2000). Circumstantial evidence that the defendant was located in very close Licking County App. Case No. 11CA0077 12
proximity to the contraband may show constructive possession. See State v. Barr, 86
Ohio App.3d 227, 235, 620 N.E.2d 242, 247-248, (8th Dist. 1993).
{¶49} In State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d (1976), cited by
appellant, the Court held that “Constructive possession exists when an individual
exercises dominion and control over an object, even though that object may not be
within his immediately physical possession.” Appellant now argues that the trial court,
in instructing the jury that a person has constructive possession of an item when he has
knowledge of the presence of the item, and the ability to control its use and/or exercise
dominion over the same, misstated Wolery.
{¶50} However, in Wolery, the appellant, who was convicted of receiving and
concealing stolen property, argued, in part, that the trial court had erred in its response
to a question propounded by the jury during the course of deliberations. The jury, in a
written question to the trial court, asked whether receiving and concealing extended to
the point of materially benefitting from the act without physical possession of the
merchandise. The trial court responded in writing as follows:
{¶51} “‘Not necessarily. To prove the receipt of stolen property it is not
necessary to show that it came into the actual or manual possession of the defendant. It
is sufficient in that regard to show it came into the custody or control of the defendant so
that he could direct the disposal of it. The mere fact, however, that the property was in
the possession of the defendant, if such should be the fact, would not alone constitute
the receiving of the property. Receiving implies some act on the part of the defendant by
which the property came into his possession with his knowledge, consent, and
approval.’” (Emphasis added). Licking County App. Case No. 11CA0077 13
{¶52} The Ohio Supreme Court, in Wolery, stated that the trial court’s response
to the jury’s question was a correct statement of law. We find that the use of the word
“could” in the trial court’s above response to the jury in Wolery, implies the ability to
exercise dominion or control over an item. We find, therefore, that the trial court did not
err in instructing the jury that they could find appellant to be in constructive possession
of the rifle merely by finding that he had the ability to exercise dominion and control over
the same.
{¶53} Based on the foregoing, appellant’s first assignment of error is, therefore,
overruled.
II
{¶54} Appellant, in his second assignment of error, argues that he received
ineffective assistance of trial counsel because trial counsel failed to object to the jury
instruction regarding constructive possession.
{¶55} To show ineffective assistance of counsel, appellant must satisfy a two-
prong test. Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052 (1984). First,
he must show that his trial counsel engaged in a substantial violation of any essential
duty to his client. State v. Bradley, 42 Ohio St.3d 136, 141, 538 N.E.2d 373, quoting
State v. Lytle, 48 Ohio St.2d 391, 396, 358 N.E.2d 623 (1976). Second, he must show
that his trial counsel's ineffectiveness resulted in prejudice. Bradley, at 141–142, quoting
Lytle, at 396–397. Prejudice exists where there is a reasonable probability that the trial
result would have been different but for the alleged deficiencies of counsel. Bradley, ¶
three of the syllabus. Licking County App. Case No. 11CA0077 14
{¶56} Based on our disposition of appellant’s first assignment of error, we find
that appellant cannot show that he was prejudiced by his counsel’s failure to object to
the jury instruction. Appellant’s second assignment of error is, therefore, overruled.
III, IV
{¶57} Appellant, in his third assignment of error, argues that there was
insufficient evidence supporting his conviction for having a weapon while under
disability and the true finding on the firearm, specification. In his fourth assignment of
error, he contends that the verdict of guilty on the charge of having a weapon while
under disability and the true finding on the firearm specification are not supported by the
weight of the evidence.
{¶58} 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, 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, (1st Dist. 1983).
{¶59} 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 (1991), ¶ two of the syllabus. Licking County App. Case No. 11CA0077 15
{¶60} Appellant argues that there was very little evidence supporting a finding of
constructive possession and notes that appellant was merely present in the room with
the rifle. Appellant further argues that the evidence indicated that Huffman exercised
actual dominion and control over the rifle and argues that the residence was under the
dominion and control of Huffman, not appellant. Appellant also maintains that the jury
might have lost its way “due to the superfluous evidence that there was a handgun on
the kitchen table when the drug transaction occurred” and that the handgun was closer
to appellant than the rifle he was charged with possessing.
{¶61} Viewing the evidence in the case at bar in a light most favorable to the
prosecution, we conclude that a reasonable person could have found beyond a
reasonable doubt that appellant had committed the crime of having a weapon while
under a disability and the firearm specification and that the jury did not create a manifest
injustice by convicting appellant. Testimony adduced at trial that appellant and others
inside the house on Westview were trading and selling items to each other. As is stated
above, appellant was at the kitchen table when he sold drugs to the confidential
informant. At the time, a rifle, which was in plain view, was leaning up against a nearby
wall and was approximately six feet away from the table. Appellant, therefore, was in
close proximity to the rifle while selling drugs. There was no evidence that Huffman or
anyone else had more control or dominion over the premises than appellant.
{¶62} Based on the foregoing, we find that the verdict of guilty on the charge of
heaving a weapon while under disability and the finding on the firearm specification
were not against the sufficiency or manifest weight of the evidence. Licking County App. Case No. 11CA0077 16
{¶63} Appellant’s third and fourth assignments of error are, therefore, overruled.
{¶64} Accordingly, the judgment of the Licking County Court of Common Pleas
is affirmed.
By: Edwards, J.
Delaney, P.J. and
Gwin, J. concur
______________________________
JUDGES
JAE/d0124 [Cite as State v. McVey, 2012-Ohio-2520.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : DANIEL L. McVEY, II : : Defendant-Appellant : CASE NO. 11CA0077
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to
appellant.
_________________________________