[Cite as State v. Sharp, 2016-Ohio-2634.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103445
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
MICHAEL SHARP DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-593128-A
BEFORE: McCormack, P.J., E.T. Gallagher, J., and Boyle, J.
RELEASED AND JOURNALIZED: April 21, 2016 ATTORNEY FOR APPELLANT
Britta M. Barthol P.O. Box 218 Northfield, OH 44067
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Joan M. Bascone Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, P.J.:
{¶1} Defendant-appellant, Michael Sharp, appeals his conviction for tampering
with evidence and drug possession. For the reasons that follow, we affirm.
Procedural History and Substantive Facts
{¶2} Sharp was charged under a two-count indictment with tampering with
evidence, in violation of R.C. 2921.12(A)(1), and drug possession, in violation of R.C.
2925.11(A). Sharp pleaded not guilty to the charges, and the case proceeded to a jury
trial.
{¶3} At trial, the state presented evidence concerning an arrest that occurred
incidental to a traffic stop on January 31, 2015. The state presented the testimony of
Bedford Heights police officer Ryan Kaetzel and Detective Frank Reed, as well as
forensic scientist Shervonne Bufford.
{¶4} Officer Kaetzel testified that he was on patrol in Bedford Heights on
January 31, 2015, when his attention was drawn to an orange Chevy Cavalier with an
expired registration sticker directly in front of him. Officer Kaetzel stated that he knew
the current registration sticker was an orange color and the sticker on the Cavalier was
green, indicating an expiration from the prior year. He verified the vehicle’s registration
with his in-car computer system and learned that the vehicle registration expired in
August 2014, which means that it had expired five months earlier. He called dispatch,
which confirmed that the vehicle registration was, in fact, expired. Thereafter, Officer Kaetzel initiated his lights and pulled the vehicle over. He received acknowledgment
from dispatch regarding the traffic stop, and he activated his body camera.
{¶5} Officer Kaetzel testified that he approached the driver side of the car and
observed a male driver whom he later identified as Sharp. At this time, Officer Kaetzel
was aware that the vehicle he pulled over was registered to a female. He also learned at
this time that the plates on the orange Chevy Cavalier were actually registered to a red
Ford Escort, thus making them “fictitious” plates. Officer Kaetzel explained to Sharp
why he had pulled him over and asked Sharp for his driver’s license and proof of
insurance. Sharp appeared nervous and repeatedly told Officer Kaetzel that it was not
his vehicle and he was just traveling home. The officer testified that he began to “pick up
indicators that maybe there was something more * * * than just a normal traffic stop” and
Sharp appeared eager to end the encounter. He stated that Sharp appeared “overly
nervous,” and the encounter raised red flags for him, noting that he’s made “hundreds” of
traffic stops and Sharp appeared “more nervous than normal.”
{¶6} Upon receiving Sharp’s driver’s license, Officer Kaetzel returned to his
patrol car and requested back-up. His request for back-up was based upon his
observations of Sharp and the fact that the vehicle had fictitious plates, and he believed
that the traffic stop may become more than a routine traffic stop. When the officer
returned to his patrol car, he learned through his LEADS computer that Sharp’s driver’s
license was under suspension. Due to the number of suspensions Sharp had been under, it was the policy of the police department to make an arrest. He waited for back-up to
arrive and for confirmation from dispatch regarding the need for an arrest.
{¶7} After back-up arrived and he received confirmation from dispatch that an
arrest must be made, Officer Kaetzel and the back-up officer approached Sharp in the
vehicle. Officer Kaetzel informed Sharp that he would be placed under arrest due to his
driving suspensions and the vehicle must be impounded. The officer testified that at that
point, Sharp became very nervous and “very fidgety” and he stated that he could not
understand why the vehicle must be impounded. Sharp asked if his girlfriend could pick
up the car. The officer explained that due to the fictitious plates, their policy required
the car be impounded. Officer Kaetzel instructed Sharp to gather his personal
belongings and exit the vehicle.
{¶8} Officer Kaetzel stated that Sharp was speaking with someone on his cell
phone for a long period of time. Sharp appeared very nervous and began asking the
officer if he could leave his personal items in the vehicle, including a pack of cigarettes.
Officer Kaetzel informed Sharp that he could leave any items he wished, but he must
leave the key in the ignition. When Officer Kaetzel asked Sharp to exit the vehicle,
Sharp, again, appeared “shaky” and very nervous, and he continued to reach under his
seat. At this point, Officer Kaetzel became concerned that Sharp was reaching for a
weapon. He illuminated his flashlight under Sharp’s seat and asked Sharp what he was
reaching for. Sharp did not answer him. Once again, Officer Kaetzel instructed Sharp
to exit the vehicle. {¶9} At that point, Officer Kaetzel observed Sharp quickly throw an item,
appearing to be a piece of paper, into his mouth. The officer asked Sharp what he put
into his mouth, and Sharp told him that it was just a piece of paper. Officer Kaetzel
informed Sharp that he believed Sharp was attempting to destroy evidence or eat some
form of drugs. Officer Kaetzel testified that Sharp “kept saying that it was nothing, he
put nothing into his mouth, he said it was just a piece of paper.” The officer then
grabbed Sharp’s arm, moved it away from his mouth, and observed a scattering of white
powder on the dashboard.
{¶10} With the back-up officer’s assistance, Office Kaetzel removed Sharp from
the vehicle and placed him into custody. Having observed Sharp place the paper in his
mouth and noting his concern that Sharp may have ingested a drug, Officer Kaetzel asked
Sharp to open his mouth. At that point, the officer observed a white substance in the
back of Sharp’s throat. Sharp was placed under arrest and transported to the jail, where
paramedics would assess his medical condition.
{¶11} Thereafter, Officer Kaetzel collected the white substance from the
dashboard and placed it into an evidence bag. He also discovered the piece of paper
Sharp had attempted to place in his mouth on the driver’s seat and placed the paper into
evidence. Detective Reed transported the evidence to the Bureau of Criminal
Investigation (“BCI”) lab for testing. Shervonne Bufford, forensic scientist with BCI,
analyzed the substance found in the evidence bag and concluded that the white substance
was a trace amount of cocaine. {¶12} The defense moved for Crim.R. 29 acquittal at the close of the state’s case
and after the defense rested, both of which the trial court denied. The jury found Sharp
guilty of both charges. The trial court sentenced Sharp to two years of community
control sanctions on each charge, to be served concurrently.
{¶13} Sharp now appeals his convictions, raising two assignments of error for our
review: his convictions were not supported by sufficient evidence and the convictions
are against the manifest weight of the evidence.
Sufficiency
{¶14} In his first assignment of error, Sharp claims that the state failed to provide
sufficient evidence to support his convictions for tampering with evidence and drug
possession.
{¶15} When assessing a challenge of sufficiency of the evidence, a reviewing
court examines the evidence admitted at trial and determines whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a reasonable
doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. “The 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.” Id. A reviewing court is not
to assess “whether the state’s evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.” State v. Thompkins, 78 Ohio
St.3d 380, 390, 678 N.E.2d 541 (1997). {¶16} Sharp argues that his conviction for tampering with evidence is not
supported by sufficient evidence. Specifically, he argues there is no evidence that he
knew an investigation was in progress or likely to be instituted concerning drugs.
{¶17} Sharp was convicted of tampering with evidence in violation of R.C.
2921.12(A)(1). That statute provides that
[n]o person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall * * * [a]lter,
destroy, conceal, or remove any record, document, or thing, with purpose to
impair its value or availability as evidence in such proceeding or
investigation[.]
R.C. 2921.12(A)(1); State v. Coleman, 8th Dist. Cuyahoga No. 102966, 2016-Ohio-297, ¶
21.
{¶18} In examining R.C. 2921.12(A)(1), the Ohio Supreme Court acknowledged
that there are three elements to tampering with evidence: “(1) the knowledge of an
official proceeding or investigation in progress or likely to be instituted; (2) the alteration,
destruction, concealment, or removal of the potential evidence; and (3) the purpose of
impairing the potential evidence’s availability or value in such proceeding or
investigation.” State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175,
¶ 11. A conviction for tampering with evidence under this statute, therefore, necessarily
requires proof that the defendant intended to impair the availability of the evidence that is
related to “an existing or likely official investigation or proceeding.” Id. at ¶ 19. “Likelihood is measured at the time of the act of alleged tampering.” Id. And the state
must demonstrate that the defendant knew that an investigation was likely “at the time of
the concealment.” State v. Barry, Slip Opinion No. 2015-Ohio-5449. Knowledge that
a criminal investigation is imminent is based upon a reasonable person standard. State v.
Workman, 3d Dist. Auglaize No. 2-15-05, 2015-Ohio-5049, ¶ 51.
{¶19} Tampering with evidence under R.C. 2921.12(A)(1) requires a person to act
with purpose, meaning that the person has a specific intention to cause a certain result.
See State v. Skorvanek, 182 Ohio App.3d 615, 2009-Ohio-1709, 914 N.E.2d 418, ¶ 21
(9th Dist.); R.C. 2901.22(A). When determining whether the defendant acted purposely,
a defendant’s state of mind may be inferred from the surrounding circumstances. State
v. Rock, 3d Dist. Seneca No. 13-13-38, 2014-Ohio-1786, ¶ 13, citing Skorvanek at ¶ 21.
{¶20} Sharp argues that he was being investigated for driving under suspension
and any attempts to hide or destroy the cocaine did not impair evidence related to that
investigation. He cites Straley for support. In Straley, two narcotic detectives stopped
Straley’s car after observing it travel left of center. They smelled alcohol on Straley and
suspected her of driving while under the influence of alcohol, but a search of the car and
her bag revealed no contraband. The detectives decided not to arrest her, but while they
were attempting to find her a ride home, Straley said that she needed to urinate. She ran
to the corner of a building and relieved herself, and when she had finished, a detective
examined the area and discovered a urine soaked cellophane baggie containing crack
cocaine. Id. at ¶ 2-4. The Ohio Supreme Court determined that “the evidence tampered with must have some relevance to an ongoing or likely investigation to support
a tampering charge,” and that the “[l]ikelihood [of an investigation] is measured at the
time of the act of alleged tampering.” Id. at ¶ 16, 19. The court therefore concluded
that Straley’s conviction for tampering was not supported by sufficient evidence, because
“[t]here is nothing in the record to suggest that the officers were conducting or likely to
conduct an investigation into trafficking or possession of cocaine when Straley discarded
the baggie.” Id. at ¶ 19.
{¶21} This case is distinguishable. Here, although the investigation began as a
routine traffic stop due to an expired registration sticker, it escalated to the discovery of
fictitious plates and Sharp’s suspended driver’s license, which resulted in the need to
arrest Sharp and impound the vehicle. When the officer advised Sharp that he would be
placed under arrest and the vehicle would be impounded, Sharp became very nervous and
asked if he could leave his personal belongings in the vehicle and if his girlfriend could
retrieve the car. When Officer Kaetzel instructed Sharp to exit the vehicle, Sharp
continued to appear nervous and repeatedly reached under his seat. The officer became
aware of Sharp’s actions and asked why he was reaching under his seat, shining his
flashlight in that direction. When Officer Kaetzel instructed Sharp to exit the vehicle
one last time, Sharp quickly threw an item into his mouth and told the officer that it was
just paper.
{¶22} In light of the above, when viewing the evidence in the light most favorable
to the state, we find any rational trier of fact could find that at the time Sharp placed the paper containing cocaine in his mouth, he knew that an investigation into the possession
of drugs would likely be instituted. A reasonable person could find that under the
circumstances, Sharp would expect to be searched by police upon being placed under
arrest, as well as the vehicle being searched upon impoundment. Moreover, a rational
trier of fact could infer that Sharp attempted to destroy or remove evidence of drugs
(cocaine) by putting the drugs in his mouth and swallowing, with the purpose of
impairing its availability in the investigation. Sharp’s conviction for tampering with
evidence is therefore supported by sufficient evidence.
{¶23} Sharp also argues that his conviction for drug possession was not supported
by sufficient evidence. In support, he contends that the car did not belong to him and
there was no evidence that he had the piece of paper in his possession.
{¶24} Sharp was convicted of drug possession in violation of R.C. 2925.11(A),
which provides that “[n]o person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.”
{¶25} A person acts “knowingly” when he “is aware that his conduct will probably
cause a certain result or will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably exist.” R.C.
2901.22(B); State v. Tyler, 8th Dist. Cuyahoga No. 99402, 2013-Ohio-5242, ¶ 15.
Knowledge must be determined through inferences drawn from the surrounding facts and
circumstances. State v. Smith, 8th Dist. Cuyahoga No. 96348, 2011-Ohio-6466, ¶ 51, citing State v. Green, 1st Dist. Hamilton No. C-860791, 1988 Ohio App. LEXIS 1401
(Apr. 20, 1988).
{¶26} Under R.C. 2925.01(K), “possess” or “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.” Possession may be actual or constructive. State v. Haynes, 25
Ohio St.2d 264, 269-270, 267 N.E.2d 787 (1971). While the mere presence of an
individual in the vicinity of illegal drugs or contraband is not sufficient evidence of
possession, circumstantial evidence is sufficient to support the element of constructive
possession. Smith at ¶ 52; Jenks, 61 Ohio St.3d at 272, 574 N.E.2d 492.
{¶27} Constructive possession requires evidence that an individual exercised, or
had the ability to exercise, dominion and control over an object, even though that object
may not be within his immediate physical possession. State v. Wolery, 46 Ohio St.2d 316,
329, 348 N.E.2d 351 (1976). The discovery of readily accessible drugs in proximity to a
person constitutes circumstantial evidence that the person was in constructive possession
of the drugs. State v. Paige, 8th Dist. Cuyahoga No. 97939, 2012-Ohio-5727, ¶ 13,
citing State v. Pavlick, 8th Dist. Cuyahoga No. 81925, 2003-Ohio-6632, ¶ 17. The state
may therefore demonstrate constructive possession, i.e., dominion and control, of drugs
solely by the presentation of circumstantial evidence. State v. Wilson, 8th Dist.
Cuyahoga No. 102231, 2015-Ohio-4979, ¶ 10, citing State v. Trembly, 137 Ohio App.3d
134, 141, 738 N.E.2d 93 (8th Dist.2000). {¶28} Here, the evidence demonstrates that Sharp, the driver, was the sole
occupant of the vehicle. Officer Kaetzel testified that when he advised Sharp that he
would be placed under arrest and the vehicle would be impounded, Sharp became very
nervous and asked if he could leave his personal belongings in the vehicle and if his
girlfriend could retrieve the car. When Officer Kaetzel instructed Sharp to exit the
vehicle, Sharp continued to appear nervous and “shaky,” and he repeatedly reached under
his seat. When Officer Kaetzel instructed Sharp to exit the vehicle one last time, Sharp
quickly threw an item into his mouth and told the officer that it was just paper.
Immediately thereafter, the officer grabbed Sharp’s arm and moved it from his mouth,
and he observed white powder on the dashboard. After removing Sharp from the
vehicle, the officer shined a light into Sharp’s mouth and observed a white substance in
the back of Sharp’s throat. After returning to the vehicle, Officer Kaetzel discovered the
paper that Sharp had placed into his mouth on the driver’s seat. The evidence shows
that the white powder substance removed from the dashboard of the vehicle and the paper
retrieved from the driver’s seat of the vehicle contained cocaine.
{¶29} In light of the above, we find that a rational trier of fact could find that the
foregoing evidence, albeit circumstantial, was sufficient to demonstrate that Sharp was in
constructive possession of the drugs found on the dashboard and the paper on the driver’s
seat of the vehicle.
{¶30} Sharp’s first assignment of error is overruled. Manifest Weight of the Evidence
{¶31} In his second assignment of error, Sharp claims that his convictions were
against the manifest weight of the evidence. He incorporates the arguments he presented
in his first assignment of error and contends that there were no drugs found in his
possession, the white substance in his throat was not tested, and the car in which the
cocaine was found did not belong to him.
{¶32} While the test for sufficiency of the evidence requires a determination
whether the state has met its burden of production at trial, a manifest weight challenge
questions whether the state has met its burden of persuasion. Thompkins, 78 Ohio St.3d
at 390, 678 N.E.2d 541. Also unlike a challenge to the sufficiency of the evidence, a
manifest weight challenge raises a factual issue.
“The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”
Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). A finding that a conviction was supported by the manifest weight of the
evidence, however, necessarily includes a finding of sufficiency. State v. Howard, 8th
Dist. Cuyahoga No. 97695, 2012-Ohio-3459, ¶ 14, citing Thompkins at 388.
{¶33} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. And a factfinder is free to believe all, some,
or none of the testimony of each witness appearing before it. State v. Ellis, 8th Dist.
Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 18.
{¶34} Circumstantial evidence and direct evidence inherently possess the same
probative value. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph one of the
syllabus. “[A]ll that is required of the jury is that it weigh all of the evidence, direct and
circumstantial, against the standard of proof beyond a reasonable doubt.” Id. at 272.
“‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying,
and persuasive than direct evidence.’” State v. Hawthorne, 8th Dist. Cuyahoga No.
96496, 2011-Ohio-6078, ¶ 9, quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325,
330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960). And circumstantial evidence alone is sufficient to
support a conviction. Coleman, 8th Dist. Cuyahoga No. 102966, 2016-Ohio-297, at ¶
22.
{¶35} Here, the evidence shows that when Officer Kaetzel advised Sharp that he
would be placed under arrest and the vehicle would be impounded, Sharp became very
nervous, asked if he could leave his personal belongings in the car, and repeatedly
reached under his seat. Just before exiting the vehicle, he quickly threw an item into his
mouth and told the officer that it was “just paper.” When the officer removed Sharp’s
arm away from his mouth, the officer discovered a white powder on the dashboard. The
officer also discovered a white substance in the back of Sharp’s throat. And upon
returning to the vehicle, the officer discovered the piece of paper Sharp had attempted to place into his mouth on the driver’s seat of the vehicle. Forensic tests revealed that the
white substance found on the dashboard and the piece of paper was cocaine.
{¶36} Based upon the record, we are unable to conclude that this is the exceptional
case in which the evidence weighs heavily against the conviction. We cannot say that the
jury clearly lost its way, thus creating such a manifest miscarriage of justice that the
convictions for tampering with evidence and drug possession must be reversed.
{¶37} Sharp’s second assignment of error is overruled.
{¶38} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
________________________________________ TIM McCORMACK, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and MARY J. BOYLE, J., CONCUR