[Cite as State v. Pollard, 2025-Ohio-1706.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY
STATE OF OHIO, CASE NO. 2024-L-085
Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas
LAMAR K. POLLARD, Trial Court No. 2024 CR 000084 Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Decided: May 12, 2025 Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, Teri R. Daniel and Adam M. Downing, Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Adam Parker, The Goldberg Law Firm, LLC, 323 West Lakeside Avenue, Suite 450, Cleveland, OH 44113 (For Defendant-Appellant).
SCOTT LYNCH, J.
{¶1} Defendant-appellant, Lamar K. Pollard, appeals his convictions in the Lake
County Court of Common Pleas for Having Weapons While Under Disability and
Possession of Cocaine. For the following reasons, we affirm the judgment of the lower
court.
{¶2} On February 20, 2024, Pollard was indicted by the Lake County Grand Jury
for Having Weapons While Under Disability, a felony of the third degree, in violation of
R.C. 2923.13(A)(3); two counts of Improperly Handling Firearms in a Motor Vehicle,
felonies of the fourth degree, in violation of R.C. 2923.16(B) and (D)(1); Carrying Concealed Weapons, a felony of the fourth degree, in violation of R.C. 2923.12(A)(2);
and Possession of Cocaine, a felony of the fifth degree, in violation of R.C. 2925.11(A).
Each count also contained forfeiture specifications.
{¶3} A jury trial was held on September 23 and 24, 2024. The following pertinent
testimony and evidence were presented:
{¶4} On the morning of December 31, 2023, officers Meghan Blair and Ryan
Thomas of the Wickliffe Police Department were dispatched to the location of a store that
a female, Najah Weeams, refused to leave. Blair observed that Weeams was having
difficulty answering questions and had glossy eyes and Thomas believed Weeams to be
intoxicated. The officers went to the nearby gas station where Weeams’ car was parked,
and were joined by another officer, Nathaniel Heaton. The officers observed Pollard
sitting in the passenger seat, sleeping and unresponsive. Blair knocked on the window
to ensure he was not having medical issues.
{¶5} The officers subsequently opened the vehicle door and observed an
unsealed bottle of alcohol on the front passenger floorboard. They requested that Pollard
identify himself, which he refused to do. He was asked to step out of the vehicle but did
not comply and argued with the officers. All three officers indicated that, at that time, they
had not yet observed a firearm in the vehicle, although they had observed and removed
the bottle of alcohol in that area.
{¶6} The three officers began physically attempting to remove Pollard from the
vehicle. Blair testified that Pollard stiffened his legs and pushed against the seat to
prevent removal from the vehicle and Heaton indicated that Pollard had “pinned” his leg
against the glovebox area. Heaton testified: “I was down at his feet . . . trying to get his
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Case No. 2024-L-085 feet out and there was not a gun there before and once I started pulling on his shoulder,
then I saw the gun on the floor” below Pollard’s left foot. Heaton stated “gun” and removed
it from the vehicle. Thomas and Blair both heard Heaton yell “gun.” Blair observed him
remove the gun from the front seat passenger floorboard. Blair had not seen where the
gun came from but heard a thud around the time Heaton said “gun.” She testified that
the firearm would have been in the reach of Pollard based on where it was recovered.
Pollard was removed from the vehicle and Blair observed a bag that was “like a purse”
on the passenger’s seat near the center console.
{¶7} After Pollard was removed from the vehicle and handcuffed, Thomas and
Blair saw a baggie containing a white, powdery substance and Pollard’s EBT card on the
ground near where he was lying. The baggie was later found to contain cocaine. Blair
and Thomas had not previously seen these items outside of the vehicle when they
approached it earlier.
{¶8} Video from police body cameras was played in which the officers discussed
the circumstances and Patrolman Heaton stated that the gun was not on the floor before
they pulled him out. Blair stated that “[h]e must have been sitting on it.”
{¶9} According to Thomas, at the police station, Pollard indicated that the gun
belonged to Weeams and he “was only sitting on it during the incident.” Pollard refused
to provide a DNA sample and stated that he had “already touched the firearm.” According
to Thomas, Pollard stated that the two had been out together, Weeams had dropped the
firearm multiple times, and he “picked the firearm up and held onto it so that she would
not lose” it. Heaton testified that Pollard “stated that it was her gun and that he came in
possession of it because she was in the middle of the road and drunk and . . . dropping
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Case No. 2024-L-085 her gun all over the place and so he took the gun as like safekeeping -- of the gun.”
{¶10} The jury found Pollard guilty of each of the counts as charged in the
indictment. At the sentencing hearing, the court ordered Pollard to serve concurrent
prison terms of 30 months for Having Weapons While Under Disability and 9 months for
Possession of Cocaine and merged the remaining offenses.
{¶11} Pollard timely appeals and raises the following assignments of error:
{¶12} “[1.] The Court Committed Plain Error in Allowing a Police Officer to Offer
His Legal Opinion on the Ultimate Issue of Possession.”
{¶13} “[2.] Mr. Pollard’s Conviction Was Not Supported by Sufficient Evidence.”
{¶14} “[3.] Mr. Pollard’s Conviction was Against the Manifest Weight of the
Evidence.”
{¶15} We will consider the assignments of error out of order for ease of
discussion. In his second assignment of error, Pollard argues that his convictions were
not supported by sufficient evidence since the mere presence of a gun in his vicinity did
not prove possession and the cocaine was not seen on Pollard’s person. In his third
assignment of error, he argues that his convictions were not supported by the weight of
the evidence, reasserting that possession of the two items was not demonstrated by the
evidence. We will address these assignments of error jointly since they are interrelated.
{¶16} In reviewing the sufficiency of the evidence, “[t]he relevant inquiry is
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 (1991), paragraph two of the
syllabus.
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Case No. 2024-L-085 {¶17} While “sufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a matter of law, . . . weight of the
evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 2007-Ohio-
2202, ¶ 25, citing State v. Thompkins, 78 Ohio St.3d 380, 386-387 (1997). “[A] reviewing
court asks whose evidence is more persuasive—the state’s or the defendant’s?” Id. An
appellate court must consider all the evidence in the record, the reasonable inferences,
the credibility of the witnesses, and whether, “in resolving conflicts in the 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.” (Citation omitted.) Thompkins at
387. “Since there must be sufficient evidence to take a case to the jury, it follows that ‘a
finding that a conviction is supported by the weight of the evidence necessarily must
include a finding of sufficiency.’” (Citation omitted.) State v. Barnes, 2023-Ohio-353, ¶
43 (11th Dist.).
{¶18} As an initial matter, we need not consider any issues relating to sufficiency
or weight of the evidence for Improperly Handling Firearms in a Motor Vehicle and
Carrying Concealed Weapons since these were merged into the offense of Having
Weapons While Under Disability. “[W]here allied offenses are merged and there is
sufficient evidence on the offense for which defendant is sentenced, errors relating to
sufficiency and weight of the evidence on the count that is merged are harmless and need
not be considered.” State v. Abdullah, 2022-Ohio-3977, ¶ 28 (11th Dist.).
{¶19} Pursuant to R.C. 2923.13(A)(3), “no person shall knowingly acquire, have,
carry, or use any firearm or dangerous ordnance, if” they have been convicted of or are
under indictment for a felony drug offense. Under R.C. 2925.11(A), “[n]o person shall
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Case No. 2024-L-085 knowingly obtain, possess, or use a controlled substance or a controlled substance
analog.” “In order to ‘have’ a firearm within the meaning of R.C. 2923.13(A), a person
must have actual or constructive possession of it.” State v. Teachout, 2007-Ohio-1642,
¶ 29 (11th Dist.). Likewise, possession of a drug may be actual or constructive. State v.
Hudson, 2018-Ohio-133, ¶ 46 (11th Dist.).
{¶20} Pollard’s arguments relating to the weight and sufficiency of the evidence
center around his contention that the State did not prove he possessed or had on his
person either the gun or the cocaine.
{¶21} Under R.C. 2925.01(K), “possession” is defined as “having control over a
thing or substance, but may 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.” In relation to possession for the purposes of Having Weapons While
Under Disability, this court has held that “[a]ctual possession requires ownership and/or
physical control.” (Citation omitted.) State v. Johnson, 2025-Ohio-890, ¶ 40 (11th Dist.).
{¶22} “Constructive possession exists when an individual is able to exercise
dominion or control over an item, even if the individual does not have the item within his
immediate physical possession.” (Citation omitted.) State v. Perry, 2021-Ohio-2183, ¶
27 (11th Dist.). The presence of a firearm or drugs in the same area or the premises of
the defendant “without more is insufficient to support an inference of constructive
possession.” State v. Dickerson, 2015-Ohio-938, ¶ 37 (11th Dist.); State v. Parker, 2018-
Ohio-3239, ¶ 34 (11th Dist.). It is also necessary to show that the defendant was
“conscious of the presence of that object.” State v. Foti, 2024-Ohio-699, ¶ 28 (11th Dist.);
Perry at ¶ 27. Constructive possession may be established “entirely by circumstantial
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Case No. 2024-L-085 evidence.” (Citation omitted.) Parker at ¶ 33.
{¶23} As to possession of the firearm, the State presented evidence that the
officers recovered a firearm from the passenger floorboard after struggling to physically
remove Pollard from the vehicle. They indicated that, prior to attempting to remove
Pollard from the vehicle, they had not observed the gun on the floor. During the struggle,
and after a “thud” sound, the gun was recovered from the floor in the area Pollard was
seated. This demonstrates that the gun was within his vicinity and control, as it
necessarily must have been in the area where he was seated to fall to the ground on his
side of the vehicle.
{¶24} Pollard argues that the gun could have been in Weeams’ purse, which was
located in the area he was seated, and the State did not demonstrate he was aware of
the gun. While it is required that a defendant have awareness of the existence of the gun
to establish constructive possession, Pollard’s own statements to police establish that
fact. He indicated that he had taken the gun from Weeams for “safekeeping.” These
statements demonstrate he was aware of the gun and admitted that he had taken it into
his possession. In fact, Pollard’s admitted “safekeeping” is clearly an instance of actual
possession. His argument that it may have fallen from the purse is contrary to his
statement that he took it for safekeeping. His knowledge of the gun’s presence is also
buttressed by his failure to comply with police instructions to exit the vehicle and physical
resistance when they attempted to remove him from his seat. A defendant’s behavior
when confronted by police is relevant circumstantial evidence of possession of an illegal
item. State v. Hobbs, 2024-Ohio-2601, ¶ 22 (11th Dist.) (the defendant’s failure to identify
himself to police supported an inference that he was aware of the presence of a firearm
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Case No. 2024-L-085 in the vehicle); State v. Robinson, 2021-Ohio-3715, ¶ 25 (10th Dist.) (nervous behavior is
circumstantial evidence of constructive possession). Here, the existence of the facts
above in addition to proximity to the firearm demonstrate that he was in constructive
possession of it. See State v. Kessler Scott, 2022-Ohio-4054, ¶ 32 (11th Dist.)
(constructive possession is proven where there is not evidence of just mere proximity but
“multiple factors from which inferences can be drawn that” the item was in the defendant’s
possession).
{¶25} Pollard also notes that the vehicle and the gun were not owned by him. A
defendant is not required to have ownership of the possessed item to establish
constructive possession. Perry, 2021-Ohio-2183, at ¶ 32 (11th Dist.) (“[a]ssuming
arguendo that the Sig Sauer belonged to Bozeman and that she merely handed it to Perry
to hide under the seat, it would be enough to sustain [Perry’s] convictions”).
{¶26} As to possession of the drugs, the officers testified that, after Pollard was
removed from the vehicle, they located a baggie of cocaine near an EBT card bearing his
name. These items were located on the ground near the car and where he was
handcuffed. The officers testified they had not seen the items on the ground when initially
approaching the vehicle. Given the cocaine’s proximity to a card identifying Pollard and
the struggle that occurred to remove him from the vehicle near these items, the evidence
establishes that the cocaine was in Pollard’s possession. See State v. Cenker, 2007-
Ohio-921, ¶ 49 (5th Dist.) (possession was demonstrated where drugs were recovered in
a container with appellant’s identification card).
{¶27} For the foregoing reasons, the testimony of the officers supports a
determination that Pollard was in possession of both the firearm and the cocaine and the
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Case No. 2024-L-085 offenses of Possession of Cocaine and Having Weapons While Under Disability were
supported by both the manifest weight and the sufficiency of the evidence.
{¶28} The second and third assignments of error are without merit.
{¶29} In his first assignment of error, Pollard argues that Officer Heaton was not
permitted to testify whether Pollard was in possession of the gun since it was an ultimate
issue to be decided by the jury.
{¶30} Pollard did not object to this testimony at trial. Where a party does not object
to the admission of testimony, a plain error standard of review is applied. State v.
Barefield, 2025-Ohio-433, ¶ 48 (11th Dist.). “Crim.R. 52(B) affords appellate courts
discretion to correct ‘[p]lain errors or defects affecting substantial rights’ notwithstanding
the accused’s failure to meet his obligation to bring those errors to the attention of the trial
court.” State v. Rogers, 2015-Ohio-2459, ¶ 22. “In order to prevail under a plain error
standard, an appellant must demonstrate that there was an obvious error in the
proceedings and, but for the error, the outcome would have been otherwise.” State v.
Lefkowitz, 2022-Ohio-4052, ¶ 15 (11th Dist.).
{¶31} Pollard cites Shepherd v. Midland Mut. Life Ins. Co., 152 Ohio St. 6 (1949),
paragraph one of the syllabus, for the proposition that “an opinion, whether expert or
otherwise, may not be admitted when it, in effect, answers the very question as to the
existence or non-existence of an ultimate fact to be determined by the jury.”
{¶32} “If the witness is not testifying as an expert, the witness’ testimony in the
form of opinions or inferences is limited to those opinions or inferences which are (1)
rationally based on the perception of the witness and (2) helpful to a clear understanding
of the witness’ testimony of the determination of a fact in issue.” Evid.R. 701. Pursuant
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Case No. 2024-L-085 to Evid.R. 702, a witness may testify as an expert where the witness’ testimony “relates
to matters beyond the knowledge or experience possessed by lay persons;” the witness
is qualified by specialized knowledge, skill, experience, training or education; and the
testimony is based “on reliable scientific, technical, or other specialized information.”
{¶33} Evid.R. 704 provides that “[t]estimony in the form of an opinion or inference
otherwise admissible is not objectionable solely because it embraces an ultimate issue to
be decided by the trier of fact.” “In other words, ‘opinion evidence on an ultimate issue is
not excludable per se.’” State v. Barefield, 2025-Ohio-433, ¶ 55 (11th Dist.), citing 1980
Staff Note, Evid.R. 704. Instead, “[t]he rule must be read in conjunction with Rule 701
and Rule 702, each of which requires that opinion testimony be helpful to, or assist, the
trier of the fact in the determination of a factual issue. Opinion testimony on an ultimate
issue is admissible if it assists the trier of the fact, otherwise it is not admissible. The
competency of the trier of the fact to resolve the factual issue determines whether or not
the opinion testimony is of assistance.” State v. Grant, 1993 WL 273402, *3 (11th Dist.
July 21, 1993), citing 1980 Staff Note, Evid.R. 704.
{¶34} Pollard initially argues that the testimony offered was lay testimony, since
Heaton was not qualified as an expert witness. Whether such testimony was expert or
lay testimony, we find no reversible error.
{¶35} Officer Heaton was not questioned about whether he believed Pollard was
guilty of the charges or whether he was in “possession” of the firearm for the purposes of
establishing the charge of Having Weapons While Under Disability. See State v. Zachery,
2021-Ohio-2176, ¶ 79 (11th Dist.) (“[c]oncern has been expressed that when an officer
opines on a defendant’s guilt, it can infringe on the province of the trier of fact”). However,
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Case No. 2024-L-085 he did testify that, while Pollard was at the jail, he “was arguing the points of possession
of the firearm stating that the gun was not his and he believed that sitting on the gun did
not mean that he was in possession of the gun. So just arguing that point of that’s not
really being in possession of it and being -- me and probably Patrolman Thomas, but I’ll
just speak for myself, saying that sitting on it is in possession -- of the gun.” Whether this
could assist the trier of fact in determining any factual issues relating to possession is
questionable. Although this was an explanation of a discussion that occurred between
Pollard and Heaton, it also did tend to show Pollard’s belief regarding the issue of
possession and legal conclusion rather than a factual observation or conclusion based
on scientific or technical information. See State v. Smith, 2015-Ohio-1736, ¶ 16 (8th
Dist.), citing State v. Marrero, 2011-Ohio-1390, ¶ 46 (10th Dist.) (“when the opinion
testimony is stated as a legal conclusion, it will not be ‘helpful’ because ‘the testimony
attempts to answer, rather than aid the jury in answering, the ultimate question at issue’”).
{¶36} Nonetheless, even if we presume that Heaton’s testimony on this issue was
inadmissible, this would not constitute reversible error. As this court has found, even
where an impermissible statement as to the ultimate issue is admitted, it is harmless error
where there is substantial evidence of guilt. Zachery at ¶ 79; State v. Fambro, 2017-
Ohio-5646, ¶ 51 (11th Dist.), citing State v. Webb, 70 Ohio St.3d 325, 335 (1994)
(“[n]onconstitutional error is harmless if there is substantial other evidence to support the
guilty verdict”). As described above, multiple officers testified regarding the facts
surrounding the possession of the firearm and that the firearm was recovered from the
vehicle while removing Pollard. The officers did not see the firearm when immediately
looking in the car and it was only recovered near his feet after Pollard moved.
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Case No. 2024-L-085 Significantly, Pollard himself indicated that he had taken control of the firearm from
Weeams for safekeeping. This constitutes substantial evidence of Pollard’s guilt of the
offense of Having Weapons While Under Disability.
{¶37} The first assignment of error is without merit.
{¶38} For the foregoing reasons, Pollard’s convictions in the Lake County Court
of Common Pleas are affirmed. Costs to be taxed against appellant.
JOHN J. EKLUND, J.,
EUGENE A. LUCCI, J.,
concur.
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Case No. 2024-L-085 JUDGMENT ENTRY
For the reasons stated in the Opinion of this court, the assignments of error are
without merit. The order of this court is that Pollard’s convictions in the Lake County Court
of Common Pleas are affirmed.
Costs to be taxed against appellant.
JUDGE SCOTT LYNCH
JUDGE JOHN J. EKLUND, concurs
JUDGE EUGENE A. LUCCI, concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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Case No. 2024-L-085