State v. Morrison

2021 Ohio 3297

• Court: Ohio Court of Appeals
• Decided: September 20, 2021
• Docket: 2021 CA 0020
• Status: Published

Opinion

[Cite as State v. Morrison, 2021-Ohio-3297.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : SHAWN MORRISON, : Case No. 2021 CA 0020 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 20CR1034

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 20, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES WILLIAM T. CRAMER Licking County Prosecutor 470 Olde Worthington Road, Suite 200 Westerville, Ohio 43082 By: PAULA M. SAWYERS Assistant Prosecuting Attorney 20 S. Second Street Newark, Ohio 43055 Licking County, Case No. 2021 CA 0020 2

Baldwin, J.

{¶1} Appellant, Shawn Morrison, appeals the verdict of the jury in the Licking

County Court of Common Pleas, finding him guilty of Aggravated Possession of

Controlled Substances (Methamphetamine), a violation of 2925.11(A),(C)(1)(a) and a

felony of the fifth-degree.

STATEMENT OF FACTS AND THE CASE

{¶2} On December 30, 2019, Detective Sergeant Alan Thomas of the Licking

County Sheriff's Department began drug surveillance at 193 West Church Street, an

address at which the Sheriff’s Office had conducted controlled buys of narcotics, when

he noticed a large pickup truck parked in front. Thomas parked in a location that permitted

him to see people entering and leaving 193 West Church Street and, after thirty minutes,

he noticed a white male, later identified as Morrison, leave the residence and drive off in

the pickup truck. He saw that the license plate light was not illuminated, a traffic offense

that warranted stopping the truck. Thomas followed Morrison in an unmarked car, radioed

Detective Justin Woodyard and relayed the information regarding the truck.

{¶3} Detective Woodyard was nearby when he received the call from Thomas.

Woodyard responded in a marked cruiser and stopped the pickup truck. Thomas

continued a distance and parked to observe the interaction between Woodyard and

Morrison. He also contacted the Sheriff’s Office and requested that they send another

officer to the scene.

{¶4} Woodyard approached the passenger side of the vehicle and, because the

vehicle was very high off the ground, he asked Morrison if he could open the passenger

door to allow them to see each other as they talked. Woodyard asked for Morrison's Licking County, Case No. 2021 CA 0020 3

driver's license and noticed that Morrison's hands were visibly shaking as he looked

through the center console and around the interior of the vehicle for his license.

Woodyard believed the shaking was not normal for a simple traffic stop.

{¶5} Because Morrison was visibly shaking and fidgety and could not locate his

driver's license, Woodyard asked him to step outside the vehicle to talk. After they walked

back to Woodyard's cruiser, Woodyard requested permission to search Morrison's person

and he agreed. Before searching Morrison, he asked if he had any illegal drugs or

anything illegal in his pockets and Morrison responded that he did not.

{¶6} In the right pocket, the officer discovered a money clip/knife combination

that contained Morrison’s driver's license. In the left pocket he saw a plastic baggy, a

round, multi-colored, rubbery pouch and cut straws. Woodyard recognized the straws as

something often used to ingest illegal narcotics.

{¶7} Woodyard noticed that Morrison was still nervous and fidgety during the

search. When Woodyard asked about the items in Morrison’s left pocket, Morrison

claimed that the officer had put them in his pocket. After hearing the accusation and

noticing Morrison continued nervous state, Woodyard decided to place Morrison in hand

cuffs to insure his own safety. Before he could place the cuffs, Morrison fled. Woodyard

followed, and then noticed that Detective Thomas saw Morrison flee and that Thomas

was pursuing him. Woodyard returned to Morrison’s vehicle and secured it, then drove

his cruiser to where he last saw Morrison pursued by Thomas.

{¶8} Thomas saw Morrison run from Woodyard, pursued him, and knocked him

to the ground. Because he had no handcuffs, Thomas restrained Morrison by laying on

him until assistance arrived. Morrison kept his hands beneath his body and, concerned Licking County, Case No. 2021 CA 0020 4

that he may have a weapon, Thomas ordered him to put his hands behind his back, but

Morrison did not comply.

{¶9} Woodyard arrived in his patrol car and found Morrison on the ground with

Thomas on top of him, restraining his movement. Woodyard and Thomas secured

Morrison, and, after they removed him from the ground, Woodyard noticed a small plastic

bag on the ground that looked like the bag he had seen in Morrison’s pocket during the

search. He also found the cut straws and the round, rubbery, multi-colored pouch he

discovered during the search of Morrison.

{¶10} The Sheriff’s Office sent the contents of the plastic bag to the Central Ohio

Regional Crime Lab for identification. That Lab analyzed the contents of the plastic baggy

and determined that it contained 1.09 grams of methamphetamine. The pouch found in

Morrison’s pocket contained what was referenced by the parties as “marijuana dabs.”

{¶11} Morrison was charged with Aggravated Possession of Controlled

Substances (Methamphetamine), 2925.11(A),(C)(1)(a), felony of the fifth-degree. The

case was presented to a jury on January 6, 2021 and Morrison testified. He explained

that he told the officer that he had just come from a friend’s home, but admitted at trial

that was not true. Instead, he explained that he had come from 163 West Church Street

after answering a solicitation for sex. When he was stopped he was concerned that he

might be cited for soliciting sex or having the marijuana dabs, and he claimed this fear

prompted him to run. He denied any knowledge of the methamphetamine that was found,

and could not explain how the plastic bag containing methamphetamine came to be in his

pocket. Licking County, Case No. 2021 CA 0020 5

{¶12} During cross-examination, Morrison admitted that he lies when he is faced

with trouble. On re-direct, when asked by his attorney whether he always lied every time

he was in trouble, Morrison admitted that he did.

{¶13} The jury returned a guilty verdict and the court imposed a sentence of

Community Control for three years and ordered Morrison to enter and successfully

complete an approved community-based correctional facility program.

{¶14} Morrison filed a timely appeal and submitted a single assignment of error:

{¶15} “I. THE CONVICTION FOR AGGRAVATED POSSESSION OF DRUGS

WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.”

STANDARD OF REVIEW

{¶16} When reviewing a weight of the evidence, the appellate court functions as

the “thirteenth juror” and reviews the entire record, weighing the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts of 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. Reversing a conviction as being against the manifest

weight of the evidence and ordering a new trial should be reserved for only the

“exceptional case in which the evidence weighs heavily against the convictions.” Id.

ANALYSIS

{¶17} In his sole assignment of error, Morrison contends that his sentence was

against the manifest weight of the evidence because he did not know that he possessed

the amphetamine. The fact that he admitted that he was soliciting sex and possessed

marijuana was offered as a testament to his credibility in support of his contention that he Licking County, Case No. 2021 CA 0020 6

was unaware that he had methamphetamine in his pocket. Though not expressly stated,

Morrison invites us to conclude that his story should be accepted and the testimony of the

state’s witnesses regarding the discovery of the methamphetamine should be discounted.

Morrison is asking us to assign greater weight and credibility to his version of the facts.

{¶18} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967)

paragraph one of the syllabus as quoted in State v. Hunter, 131 Ohio St.3d 67, 2011–

Ohio–6524, 960 N.E.2d 955, ¶ 118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942): Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).

{¶19} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness's credibility. “Indeed, the jury need

not believe all of a witness' testimony, but may accept only portions of it as true.” State v.

Raver, 10th Dist. Franklin No. 02AP–604, 2003–Ohio–958, ¶ 21 quoting State v. Antill,

176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–

1238, 2003–Ohio–2889 quoting State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096

(4th Dist. 1992) Although the evidence may have been circumstantial, we note that

circumstantial evidence has the same probative value as direct evidence. State v. Jenks,

supra.

{¶20} Morrison was charged with possession of methamphetamine, a violation of

R.C. 2925.11(A) and a fifth-degree felony. R.C. 2925.11(C)(1)(a). The statute states that

“no person shall knowingly obtain, possess, or use a controlled substance or a controlled

substance analog.” Morrison does not contend that the material in the bag was not a Licking County, Case No. 2021 CA 0020 7

controlled substance, nor does he directly state that the bag was not in his pocket, but he

claims that he did not know that he possessed methamphetamine. “[W]hether a person

acts knowingly can only be determined, absent a defendant's admission, from all the

surrounding facts and circumstances, including the doing of the act itself. Because the

intent of an accused person is only in his mind and is not ascertainable by another, it

cannot be proven by direct testimony of another person but must be determined from the

surrounding facts and circumstances. (Citations omitted.) State v. Huff, 145 Ohio App.3d

555, 563, 763 N.E.2d 695, 701 (1st Dist. 2001).

{¶21} In this case the focus is upon Morrison’s knowing, actual possession of

methamphetamine. "Actual possession exists when the circumstances indicate that an

individual has or had an item within his immediate physical possession." State v.

Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, ¶ 13, 895 N.E.2d 633 (4th Dist.),

quoting State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747, ¶ 39. Whether a

defendant knowingly possessed a controlled substance "is to be determined from all the

attendant facts and circumstances available." State v. Teamer, 82 Ohio St.3d 490,492,

1998-Ohio-193, 696 N.E.2d 1049 (1998); accord State v. Corson, 4th Dist. Pickaway

No. 15CA4, 2015-Ohio-5332, ¶ 13.

{¶22} After review of the record, we find sufficient evidence from which the jury

could determine that Morrison knowingly possessed methamphetamine. The narcotic

was found in his possession shortly after he left a residence where narcotics had been

purchased by the authorities as part of an investigation. The jury had the opportunity to

view the cruiser video of the search of Morrison and could find that it did not show the

officer placing the drug in his pocket. Further, Morrison’s actions and statements provide Licking County, Case No. 2021 CA 0020 8

a basis for a reasonable juror to doubt his protestation of innocence. He lied to the officer

when he told him that he had just left a friend’s home. He lied to the officer when he

denied that he had any drugs on his person. During his testimony he admitted that he lied

when faced with the consequences of his actions, and, when his counsel attempted to

limit his admission, he stated that he always lied when he was in trouble. Finally, the jury

may have interpreted his flight from Woodyard as exhibiting a consciousness of guilt.

{¶23} We find that this is not an ‘exceptional case in which the evidence weighs

heavily against the conviction.’ Thompkins, supra at 387. The jury neither lost his way

nor created a miscarriage of justice in convicting Morrison.

{¶24} Morrison’s assignment of error is denied and the decision of the Licking

County Court of Common Pleas is affirmed.

By: Baldwin, P.J.

Hoffman, J. and

Delaney, J. concur.