State v. Ritter

2024 Ohio 1336

• Court: Ohio Court of Appeals
• Decided: April 9, 2024
• Docket: 5-23-23
• Status: Published

Opinion

[Cite as State v. Ritter, 2024-Ohio-1336.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

STATE OF OHIO, CASE NO. 5-23-23 PLAINTIFF-APPELLEE,

v.

JEREMY K. RITTER, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Trial Court No. 2022CR00119

Judgment Affirmed

Date of Decision: April 9, 2024

APPEARANCES:

W. Alex Smith for Appellant

Phillip A. Riegle for Appellee Case No. 5-23-23

WILLAMOWSKI, P.J.

{¶1} Defendant-appellant Jeremy K. Ritter (“Ritter”) appeals the judgment

of the Hancock County Court of Common Pleas, arguing that his conviction for

aggravated possession of drugs is not supported by sufficient evidence and is against

the manifest weight of the evidence. For the reasons set forth below, the judgment

of the trial court is affirmed.

Facts and Procedural History

{¶2} On the afternoon of February 19, 2022, Officer Ryan Hackworth

(“Officer Hackworth”) was riding in the passenger seat of a police cruiser when a

blue Chrysler began turning on the roadway. He glanced towards the vehicle and

noticed that the person in the passenger seat “turned his head away, so * * * his

facial features” were no longer visible. (Tr. 263). Officer Hackworth then

instructed the driver of the police cruiser to follow the Chrysler.

{¶3} After observing the Chrysler cross the center line on the roadway, the

police initiated a traffic stop. At this point, Officer Hackworth observed the driver

and the passenger in the vehicle “both lean forward and reach down towards the

floorboard of their respective sides of the vehicle.” (Tr. 269). Based on these furtive

movements, Officer Hackworth believed that the occupants of the vehicle “could be

in the process of concealing something * * *.” (Tr. 270).

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{¶4} As he approached the Chrysler, Officer Hackworth observed a “butane-

style lighter in the center console * * *.” (Tr. 271). He later testified that this type

of lighter is often found alongside drug paraphernalia, such as pipes used to smoke

methamphetamines. Ritter was then identified as the driver of the vehicle. At this

time, Officer Hackworth noticed that Ritter was “tapping his fingers, biting at his

fingernails[,]” and breathing heavily. (Tr. 275). He also saw that Ritter was also

looking around the vehicle and was not making eye contact with the officers.

{¶5} Based on these observations, Officer Hackworth requested a K-9 unit

be dispatched to that location. In response, Detective Matthew Brunswick

(“Detective Brunswick”) of the Findlay County Sheriff’s Office came to the site of

the stop with a detection canine. The dog alerted near the driver’s side door of the

Chrysler. Ritter and the passenger were then instructed to exit the vehicle so that

the police could conduct a search. On exiting the vehicle, the passenger told Officer

Hackworth that he had a book bag in the back seat of the vehicle that contained

marijuana.

{¶6} However, Detective Brunswick had begun searching the driver’s side

of the vehicle and noticed a black case “partially sticking out from underneath the

driver’s seat * * *.” (Tr. 230). When he opened the case, he observed baggies that

contained a substance that resembled methamphetamine and what appeared to be a

“glass methamphetamine pipe.” (Tr. 236). Ritter told the police that these items

did not belong to him. The police also located a book bag in the back seat that was

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situated directly behind where the passenger was sitting. The book bag contained

marijuana, syringes, and Suboxone.

{¶7} Subsequent testing established that the black case contained 3.46 grams

of methamphetamine. On May 10, 2022, Ritter was indicted on one count of

aggravated possession of drugs in violation of R.C. 2925.11(A), a third-degree

felony. A jury trial on these charges commenced on April 24, 2023. The jury

returned a verdict of guilty on the charge against Ritter on April 25, 2023. The trial

court issued its judgment entry of sentencing on July 7, 2023.

Assignment of Error

{¶8} Ritter filed his notice of appeal on July 12, 2023. On appeal, he raises

the following assignment of error:

Jeremy Ritter was convicted against the manifest weight of the evidence and the evidence that he was convicted with was legally insufficient.

Ritter argues that the State failed to establish that he was in possession of the

controlled substances that were located in the vehicle he was driving.

Legal Standard

{¶9} “The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v. Thompkins,

78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541 (1997). A sufficiency-of-

the-evidence analysis examines whether the State has carried its burden of

production at trial. State v. Richey, 2021-Ohio-1461, 170 N.E.3d 933, ¶ 16 (3d

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Dist.). On review, an appellate court is not to consider whether the evidence at trial

should be believed but whether the evidence, if believed, could provide a legal basis

for the finder of fact to conclude that the defendant is guilty of the crime charged.

State v. Smith, 2023-Ohio-3015, 223 N.E.3d 919, ¶ 19 (3d Dist.). Accordingly, the

applicable standard “is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found that the

essential elements of the crime were proven beyond a reasonable doubt.” State v.

Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 62 (3d Dist.).

{¶10} In contrast, a manifest-weight analysis examines whether the State has

carried its burden of persuasion at trial. State v. Wilson, 2022-Ohio-504, 185 N.E.3d

176, ¶ 58 (3d Dist.). On review, “an appellate court’s function * * * is to determine

whether the greater amount of credible evidence supports the verdict.” State v.

Harvey, 3d Dist. Marion No. 9-19-34, 2020-Ohio-329, ¶ 12, quoting Plott at ¶ 73.

Appellate courts “must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder ‘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. Randle, 2018-Ohio-207, 104 N.E.3d 202, ¶ 36 (3d Dist.), quoting Plott at ¶

73, quoting Thompkins at 387. While an appellate court sits as a “thirteenth juror,”

it must still “allow the trier of fact appropriate discretion on matters relating to the

weight of the evidence and the credibility of the witnesses.” State v. Sullivan, 2017-

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Ohio-8937, 102 N.E.3d 86, ¶ 37-38 (3d Dist.), quoting State v. Coleman, 3d Dist.

Allen No. 1-13-53, 2014-Ohio-5320, ¶ 7. “Only in exceptional cases, where the

evidence ‘weighs heavily against the conviction,’ should an appellate court overturn

the trial court’s judgment.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524,

960 N.E.2d 955, ¶ 119, quoting Thompkins at 387.

{¶11} To prove the offense of aggravated possession of drugs as a third-

degree felony, the State must establish that the defendant “[1] knowingly [2]

obtain[ed], possess[ed], or use[d] [3] a controlled substance or a controlled

substance analog” in an quantity that “equals or exceeds the bulk amount but is less

than five times the bulk amount.” R.C. 2925.11(A)(1), (C)(1)(b). In turn, R.C.

2925.01(K) defines “possession” 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.”

{¶12} “Possession of drugs can be either actual or constructive.” State v.

Bustamante, 3d Dist. Seneca Nos. 13-12-26, 13-13-04, 2013-Ohio-4975, ¶ 25.

“A person has ‘actual possession’ of an item if the item is within his immediate physical possession.” State v. Williams, 4th Dist. Ross No. 03CA2736, 2004-Ohio-1130, ¶ 23. “A person has ‘constructive possession’ if he is able to exercise dominion and control over an item, even if the individual does not have immediate physical possession of it.” Bustamante at ¶ 25. “For constructive possession to exist, ‘[i]t must be shown that the person was conscious of the presence of the object.’” Id., quoting State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d 1362 (1982).

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State v. Troche, 3d Dist. Marion No. 9-22-18, 2023-Ohio-565, ¶ 26. “[T]he State

may prove * * * constructive possession of contraband by circumstantial evidence

alone.” State v. McClain, 2020-Ohio-1436, 153 N.E.3d 854, ¶ 45 (3d Dist.), quoting

Bustamante at ¶ 25.

‘Although a defendant’s mere proximity to drugs is in itself insufficient to establish constructive possession, proximity to the drugs may constitute some evidence of constructive possession.’ State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, * * * ¶ 20 * * *. ‘Therefore, presence in the vicinity of contraband, coupled with another factor or factors probative of dominion or control over the contraband, may establish constructive possession.’ Id. * * *

(Citations omitted.) McClain at ¶ 46.

For example, in the automobile context a defendant’s ‘possession of the keys to the automobile is a strong indication of control over the automobile and all things found in or upon the automobile.’ [State v.] Fry[, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747,] * * * ¶ 41. ‘Thus, when one is the driver of a car in which drugs are within easy access of the driver, constructive possession may be established.’ Id.

State v. Silvas, 3d Dist. Shelby No. 17-21-03, 2021-Ohio-4473, ¶ 14. Similarly,

“[f]urtive movements in an automobile may provide sufficient indicia of dominion

or control over contraband, allowing an inference of constructive possession.”

McClain at ¶ 46, quoting State v. Riggs, 4th Dist. Washington No. 98CA39, 1999

WL 727952, *5 (Sept. 13, 1999).

Legal Analysis

{¶13} On appeal, Ritter only argues that the State failed to establish that he

had possession of the methamphetamine that was located directly under his seat in

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the Chrysler. For this reason, we will limit our analyses to the possession element

of the conviction he challenges.

{¶14} As to the sufficiency of the evidence, the evidence produced by the

State at trial does more than establish that the methamphetamine was found in mere

proximity to Ritter. Officer Hackworth testified that he observed Ritter making

furtive movements in the direction of where the methamphetamine was located.

McClain, supra, at ¶ 46. He stated that, at the time of the traffic stop, he observed

both Ritter and the passenger “lean forward and reach down towards the floorboard

of their respective sides of the vehicle.” (Tr. 269). He also clarified that he did not

see the passenger of the vehicle lean towards the driver’s side of the vehicle.

{¶15} Further, Officer Hackworth also testified that, at the beginning of the

traffic stop, Ritter exhibited multiple “nervous indicators,” such as breathing

heavily, refusing to make eye contact, tapping his fingers, and biting his fingernails.

(Tr. 275). The evidence also indicates that the drugs were readily accessible to

Ritter. Detective Brunswick testified that he located the black case that contained

the methamphetamine “directly underneath the driver seat” in the area between

where a person’s legs would be situated. (Tr. 243). Silvas, supra, at ¶ 14. The State

also presented testimony establishing that Ritter owned the Chrysler and that the

black case was not completely concealed under the seat but was partially visible.

{¶16} From this testimony, a trier of fact could reasonably conclude that

Ritter was in constructive possession of the methamphetamine that was located

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directly under the driver’s seat of his Chrysler. Thus, having examined the evidence

in the record in a light most favorable to the prosecution, we conclude that Ritter’s

conviction is supported by sufficient evidence.

{¶17} As to the manifest weight of the evidence, the Defense asked questions

at trial about whether the black case was examined for fingerprints or DNA samples.

However, Officer Hackworth explained that they do not generally collect these

types of evidence for this kind of offense. Further, the Defense also asked questions

about what was visible to Officer Hackworth at the time that the traffic stop was

being initiated. He indicated that he could see Ritter’s head and shoulders but could

not see his arms as he observed the occupants of the vehicle making furtive

movements towards the floorboard.

{¶18} Officer Hackworth also testified that Ritter denied ownership of the

contents of the black case. Ritter told the police that several other people had been

driving the Chrysler and that one of these individuals may have left the black case

under the driver’s seat. In response, Officer Hackworth had noted to Ritter “that it

would not seem very smart, for someone to spend their money to purchase drugs, to

leave them behind.” (Tr. 296).

{¶19} On cross-examination, Officer Hackworth indicated that a search of

Ritter’s person was conducted when he exited the vehicle and that no drug

paraphernalia was located on him. He also testified that the passenger’s house was

subsequently raided by the police two months after this traffic stop and that two

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pounds of methamphetamine were located in his residence. Further, the evidence

at trial indicates that the syringes that were located in the passenger’s book bag were

found to contain traces of methamphetamine.

{¶20} In examining the evidence presented at trial on the basis of its weight

and credibility, we have found no indication that the finder of fact clearly lost its

way and returned a verdict that was against the manifest weight of the evidence.

The evidence in the record does not weigh heavily against the conclusion that Ritter

was in constructive possession of the controlled substances that were located

directly under his seat. Accordingly, the sole assignment of error is overruled.

Conclusion

{¶21} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Hancock County Court of Common Pleas

is affirmed.

WALDICK and ZIMMERMAN, J.J., concur.

/hls

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