State v. Schneider

2023 Ohio 3572

• Court: Ohio Court of Appeals
• Decided: October 3, 2023
• Docket: 23CA000001
• Status: Published

Opinion

[Cite as State v. Schneider, 2023-Ohio-3572.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Andrew J. King, J. -vs- Case No. 23CA000001 BRIAN N. SCHNEIDER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Knox County Court of Common Pleas, Case No. 21CR04-0064

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 3, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHARLES T. McCONVILLE TODD W. BARSTOW Knox County Prosecuting Attorney 261 W. Johnstown Road – Suite #204 Columbus, Ohio 43230 NICOLE E. DERR Assistant Prosecuting Attorney 117 East High Street – Suite #234 Mount Vernon, Ohio 43050 Knox County, Case No. 23CA000001 2

Hoffman, J. {¶1} Defendant-appellant Brian N. Schneider appeals his convictions and

sentence entered by the Knox County Court of Common Pleas, on one count of

aggravated possession of drugs, one count of aggravated trafficking in drugs, one count

of possession of heroin, one count of possessing drug abuse instruments, and one count

of illegal use or possession of drug paraphernalia, following a jury trial. Plaintiff-appellee

is the state of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} On April 5, 2021, the Knox County Grand Jury indicted Appellant on one

count of aggravated possession of drugs, in violation of R.C. 2925.11(A), a felony of the

second degree; one count of aggravated trafficking in drugs, in violation of R.C.

2925.03(A)(2), a felony of the second degree; one count of possession of heroin, in

violation of R.C. 2925.11(A), a felony of the third degree; one count of trafficking in heroin,

in violation of R.C. 2925.03(A)(2), a felony of the third degree; one count of possessing

drug abuse instruments, in violation of R.C. 2925.12(A), a misdemeanor of the second

degree; and one count of illegal use or possession of drug paraphernalia, in violation of

R.C. 2925.14(C)(1), a misdemeanor of the fourth degree. The trial court issued a

statewide warrant for Appellant’s arrest on April 5, 2021.

{¶3} Following Appellant’s arrest in December, 2021, the trial court vacated the

warrant. Appellant appeared before the trial court for arraignment on February 9, 2022,

and entered a plea of not guilty to the charges contained in the Indictment.

{¶4} The matter proceeded to trial on November 1, 2022. The following evidence

was adduced at trial: Knox County, Case No. 23CA000001 3

{¶5} Knox County Sheriff’s Sergeant David Devolld was working the day shift on

March 27, 2021, when he received an anonymous tip Jessica Sweet, an individual with

an outstanding statewide warrant, would be in Knox County. Sergeant Devolld learned

Sweet’s destination was the Ohio Bureau of Motor Vehicles Title Department (“BMV”) on

North Sandusky Street, Mount Vernon, Knox County, Ohio. Sergeant Devolld, Knox

County Sheriff’s Deputy Masen Gilbert, and officers from the Mount Vernon Police

Department arrived at the BMV and made contact with Sweet. Sweet and Appellant, who

was a passenger, were removed from the vehicle. Sweet was placed under arrest. Mount

Vernon Police Department Patrolman Patience Weiser conducted a search of Sweet,

during which the officer located a loaded hypodermic needle in the pocket of Sweet’s

coat.

{¶6} After the hypodermic needle was discovered on Sweet’s person, Sergeant

Devolld and Deputy Gilbert determined they had probable cause to search the vehicle.

Deputy Gilbert conducted the search, during which he found a pink bag on the floorboard

of the front passenger seat as well as a black bag behind the passenger’s seat. Inside

the black bag, Deputy Gilbert discovered multiple syringes, rubber bands or tie-offs, two

meth pipes, and an eyeglass case which contained multiple baggies of what he believed

to be crystal methamphetamine. Deputy Gilbert also noticed the odor of vinegar

emanated from the bag. The officer explained tar heroin has a vinegar scent to it.

{¶7} Deputy Gilbert subsequently placed Appellant in handcuffs and advised him

of his Miranda Rights. Appellant agreed to speak with Deputy Gilbert. When asked about

his drug usage, Appellant admitted he used heroin, but had been clean for approximately

one month. Appellant denied owning the black bag and stated he did not know to whom Knox County, Case No. 23CA000001 4

it belonged. Deputy Gilbert brought Appellant over to the vehicle. Appellant admitted the

pink bag located on the floorboard of the front passenger’s seat belonged to him and

Sweet. Appellant also indicated he owned the gray jacket found in the vehicle. Deputy

Gilbert handed Appellant to another officer and proceed to speak with Sweet, who had

been placed in a cruiser.

{¶8} After Deputy Gilbert advised Sweet of her Miranda Rights, Sweet answered

a few questions before terminating the inquiry. During the questioning, Sweet advised

Deputy Gilbert she and Appellant were homeless. Deputy Gilbert returned to the vehicle

and searched the gray jacket, in which he found a wallet containing Appellant’s

information and a black digital scale with white residue on it. Based upon the large

quantity of drugs found, Sergeant Devolld and Deputy Gilbert decided to contact

Detective Terry Wolfe, a narcotics detective with the Knox County Sheriff’s Office.

{¶9} Detective Wolfe arrived at the scene and spoke with Sergeant Devolld and

Deputy Gilbert. Detective Wolfe conducted a second search of the vehicle, then assisted

in sorting the evidence and transporting it back to the sheriff’s office. Once there,

Detective Wolfe conducted a more thorough search of the items seized. Inside the pink

bag, which was described as an Igloo lunch box, Detective Wolfe located a prescription

bottle with Appellant’s name printed on the label, small packages of cotton balls, alcohol

wipes, electric toothbrush heads, a Midol bottle containing a crystal-like substance,

Appellant’s W-2 form, and multiple documents with Appellant and Sweet’s names on

them. Inside the black bag, Detective Wolfe found a large amount of methamphetamine,

tar heroin, two glass smoking pipes, multiple silver containers, 54 unused syringes, bags

of cotton balls, 39 blue rubber bands or tie-offs, an electric toothbrush, hand cream, Knox County, Case No. 23CA000001 5

bandages, and alcohol wipes. Detective Wolfe explained how the silver containers, the

cotton balls, syringes, and tie-offs are utilized by individuals using illegal substances such

as meth, heroin, and tar heroin. The black digital scale found in Appellant’s gray jacket

was sent to the Central Ohio Regional Crime Lab for testing. The white residue found on

the scale was determined to be heroin.

{¶10} Jessica Sweet testified on Appellant’s behalf. Sweet indicated she and

Appellant traveled to the BMV in Mount Vernon to meet her niece in order to transfer a

vehicle into her niece’s name. Sweet stated she and Appellant borrowed his brother’s

vehicle that morning and, while Appellant was getting ready, she put the drugs into the

car. Sweet added Appellant specifically told her not to have drugs in his brother’s vehicle.

Sweet admitted she was involved in a similar incident in which she had drugs in her

vehicle, the vehicle was impounded, and she was ultimately sentenced to prison. Sweet

insisted Appellant had no knowledge that narcotics were in the vehicle. She added the

drug paraphernalia also belonged to her. On cross-examination, Sweet acknowledged

she was not permitted to have the vehicle in her own name due to an outstanding warrant.

When asked, “So you came up here specifically to perpetrate a fraud on the BMV by

putting the vehicle in [your niece’s] name because you couldn’t have it in your name,”

Sweet responded, “I suppose.” Transcript of Proceedings, Vol. II, at p. 249.

{¶11} After hearing all the evidence and deliberating, the jury found Appellant

guilty of aggravated possession of drugs (Count One), aggravated trafficking in drugs

(Count Two), possession of heroin (Count Three), possessing drug abuse instruments

(Count Four), and illegal use or possession of drug paraphernalia (Count Five). The trial

court conducted a sentencing hearing on December 15, 2022. The trial court merged Knox County, Case No. 23CA000001 6

Count One with Count Two and Count Three with Count Four for purposes of sentencing.

The trial court ordered Appellant serve an indefinite term of imprisonment of a minimum

of five (5) years to a maximum of seven and one-half (7 ½) years on Count Two, a definite

term of imprisonment of 30 months on Count Four, and a definite term of imprisonment

of three (3) months on Count Five, to be served concurrently. The trial court also imposed

fines, but vacated such due to Appellant’s indigency. The trial court memorialized

Appellant’s sentence via Sentencing Entry filed December 20, 2022.

{¶12} It is from his convictions and sentence Appellant appeals, raising the

following assignment of error:

THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF

DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH

AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE

ONE SECTION TEN OF THE OHIO CONSTITUTION BY FINDING HIM

GUILTY OF AGGRAVATED POSSESSION OF DRUGS; AGGRAVATED

TRAFFICKING IN DRUGS; TRAFFICKING IN DRUGS; POSSESSION OF

DRUGS; POSSESSION OF DRUG ABUSE INSTRUMENTS; AND

ILLEGAL USE OR POSSESSION OF DRUG PARAPHERNALIA, AS

THOSE VERDICTS WERE NOT SUPPORTED BY SUFFICIENT

EVIDENCE AND WERE ALSO AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE. Knox County, Case No. 23CA000001 7

I

{¶13} In his sole assignment of error, Appellant challenges his convictions as

against the manifest weight and sufficiency of the evidence.

{¶14} 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,

paragraph two of the syllabus (1997). 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,

while weight of the evidence addresses the evidence's effect of inducing belief. Id. at 386–

387. A finding a conviction is supported by the manifest weight of the evidence, however,

necessarily includes a finding the conviction is supported by sufficient evidence and will

therefore be dispositive of the issues of sufficiency of the evidence. State v. McCrary,

10th Dist. No. 10AP-881, 2011-Ohio-3161, ¶ 11.

{¶15} 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, supra at 387, quoting State v. Martin, 20 Ohio

App. 3d 172, 175, 485 N.E.2d 717 (1983).

{¶16} “An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after Knox County, Case No. 23CA000001 8

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, paragraph two of the syllabus (1991).

{¶17} Appellant specifically asserts his convictions were against the manifest

weight and sufficiency of the evidence as the state failed to prove he knowingly possessed

or trafficked the drugs found in the vehicle. Appellant argues he was merely a passenger

in a vehicle he did not own, and Sweet, the driver, testified Appellant did not have

knowledge of the narcotics or drug paraphernalia found in the vehicle. Appellant

concludes there was no evidence to support a finding he knowingly possessed or

trafficked the narcotics. We disagree.

{¶18} R.C. 2901.22(B) defines knowingly as follows:

(B) A person acts knowingly, regardless of purpose, when the person

is aware that the person's conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of circumstances

when the person is aware that such circumstances probably exist. When

knowledge of the existence of a particular fact is an element of an offense,

such knowledge is established if a person subjectively believes that there is

a high probability of its existence and fails to make inquiry or acts with a

conscious purpose to avoid learning the fact.

{¶19} “Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the Knox County, Case No. 23CA000001 9

doing of the act itself.” State v. Gross, 5th Dist. Coshocton No. 2019CA0010, 2019-Ohio-

5304, ¶ 14, (Citation and footnote omitted). Thus, “[t]he test for whether a defendant acted

knowingly is a subjective one, but it is decided on objective criteria.” Id. (Internal citations

omitted).

{¶20} “ ‘Possess’ or ‘possession’ means 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.”

Former R.C. 2925.01(L), current R.C. 2925.01(K). However, possession may be actual

or constructive. State v. Garza, 5th Dist. Stark No. 2020CA00018, 2020-Ohio-4001, ¶16,

citing State v. Butler, 42 Ohio St.3d 174, 176, 538 N.E.2d 98 (1989).

{¶21} To establish constructive possession, the evidence must prove the

defendant was able to exercise dominion and control over the contraband. State v.

Wolery, 46 Ohio St.2d 316, 332, 348 N.E.2d 351(1976). Dominion and control may be

proven by circumstantial evidence alone. Garza, supra, at ¶16, citing State v. Trembly,

137 Ohio App.3d 134, 738 N.E.2d 93 (2000). Circumstantial evidence establishing the

defendant was located in very close proximity to the contraband may show constructive

possession. State v. Butler, supra; State v. Morales, 5th Dist. Licking No. 2004 CA 68,

2005-Ohio-4714, ¶ 50. “Establishment of ownership is not required.” State v. Rastbichler,

2d Dist. Montgomery No. 25753, 2014-Ohio-628, ¶ 33. The issue of whether a person

charged with drug possession 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, 696 N.E.2d 1049 (1998). Knox County, Case No. 23CA000001 10

{¶22} Upon review of the evidence as set forth in our Statement of the Case and

Facts, supra, as well as the testimony presented at trial, we find Appellant's convictions

were not against the manifest weight of the evidence or based upon insufficient evidence.

{¶23} Detective Wolfe testified he discovered inside the pink bag, inter alia, a

prescription bottle with Appellant’s name printed on the label, Appellant’s W-2 form, and

multiple documents with Appellant and Sweet’s names on them. Appellant admitted the

pink bag located on the floorboard of the front passenger’s seat belonged to him and

Sweet. Appellant also claimed ownership of the gray jacket found in the vehicle. A digital

scale with heroin residue on it was found in the gray jacket. Although Appellant denied

ownership of the black bag, the bag was located on the back passenger seat within his

immediate reach.

{¶24} The fact Sweet was the driver and was convicted of possession of the

narcotics found in the vehicle did not prohibit the jury from finding Appellant also

constructively possessed the same items. Possession may be individual or joint. State v.

Davis, 5th Dist. Delaware No. 20CAA120052, 2022-Ohio-577, ¶ 26 (Citation omitted).

Multiple individuals may constructively possess a particular item simultaneously. Id.

(Citation omitted).

{¶25} We find the jury could reasonably infer from the evidence presented at trial

Appellant exercised dominion and control over the drugs and drug paraphernalia found

in the vehicle. The jury was free to accept or reject any or all of the evidence offered by

the parties and assess the witnesses’ credibility. Indeed, the jurors need not believe all of

a witness’ testimony, but may accept only portions of it as true. State v. McGregor, 5th Knox County, Case No. 23CA000001 11

Dist. Ashland No. 15-COA-023, 2016-Ohio-3082, 2016 WL 294299. The jury clearly

believed the testimony of the state's witnesses, over Sweet’s testimony.

{¶26} Appellant’s sole assignment of error is overruled.

{¶27} The judgment of the Knox County Court of Common Pleas is affirmed.

By: Hoffman, J. Gwin, P.J. and King, J. concur