State v. Smtih

Opinion

[Cite as State v. Smtih, 2026-Ohio-2596.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-250690 TRIAL NOS. 25/CRB/11733/A Plaintiff-Appellee, : 25/CRB/11733/B 25/CRB/11733/C vs. :

NICEO SMITH, : JUDGMENT ENTRY Defendant-Appellant. :

This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is reversed and the appellant is discharged. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 7/8/2026 per order of the court.

By:_______________________ Administrative Judge [Cite as State v. Smtih, 2026-Ohio-2596.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-250690 TRIAL NOS. 25/CRB/11733/A Plaintiff-Appellee, : 25/CRB/11733/B 25/CRB/11733/C vs. :

NICEO SMITH, : OPINION

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgments Appealed From Are: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: July 8, 2026

Emily Smart Woerner, City Solicitor, Susan M. Zurface, Chief Prosecuting Attorney, and Amber Daniel Jeffrey, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Angela Chang, Hamilton County Public Defender, and Christine Y. Jones, Assistant Public Defender, for Defendant-Appellant. [Cite as State v. Smtih, 2026-Ohio-2596.]

MOORE, Judge.

{¶1} Defendant-appellant Niceo Smith appeals from the Hamilton County

Municipal Court’s judgment convicting him of drug paraphernalia, firearm, and traffic

offenses after a bench trial. Smith raises two assignments of error, and first asserts

that the court erred when it struck his suppression motion for being untimely. Smith

also raises sufficiency and manifest-weight challenges to his drug and gun convictions.

Because Smith’s convictions are not supported by sufficient evidence, Smith’s other

assignments of error are moot. The judgments of the trial court are reversed, and

Smith is discharged from further prosecution.

I. Factual and Procedural History

{¶2} On July 10, 2025, Smith was arrested following a traffic stop. Smith was

charged with unlawful possession of drug paraphernalia, improper handling of a

firearm in a motor vehicle, unlawful carrying of a concealed weapon, driving while

under a license suspension, and driving with an illegal window tint.

{¶3} The court set an initial trial date for September 17, 2025. However,

because the State completed discovery on the morning of the initial trial date, the court

continued trial to September 29, 2025. Smith filed a suppression motion on the

morning of the trial date. The court struck Smith’s motion as not being timely. Despite

Smith’s counsel’s claims that he had not had a chance to file the suppression motion

sooner because of his number of clients, the court underscored that Smith had 12 days

to review the State’s discovery and that he should have filed his motion sooner.

{¶4} On October 3, 2025, trial continued. That morning, Smith filed a motion

requesting permission to file another suppression motion outside of time. Smith’s

counsel stated that even with the 12-day continuance between the initial and

rescheduled trial date, he could not meaningfully review the State’s discovery. The OHIO FIRST DISTRICT COURT OF APPEALS

court again struck Smith’s motion and focused on the fact that Smith’s counsel had

been on the case since July, and that he knew that Smith was charged as a result of the

police’s search of Smith’s car, but ultimately failed to timely file a motion to suppress.

{¶5} Cincinnati Police Officers Benajmin Williamson and Joseph Kemme

testified for the State. Officer Williamson recalled observing a car with an opaque

window tint at the intersection of McMicken Avenue and Vine Street that was playing

music from a portable speaker mounted on the outside of the car. Based on this

observation Officer Williamson initiated a traffic stop. Officer Williamson recalled that

it took Smith nearly two blocks to stop. Officer Kemme testified that he assisted Officer

Williamson with the traffic stop.

{¶6} Officer Williamson recalled speaking with Smith about the tint and

noise violations, and that Smith’s license was suspended. Smith stated that he was

driving his aunt’s car from Winton Terrace to visit his uncle on Main Street. Admitted

portions of Officer Williamson’s body-worn-camera (“BWC”) footage revealed that at

the outset of the stop, Smith stated that no guns were in the car. Officer Williamson

asked Smith several times if he could search Smith’s car, and on the fourth request

Smith exited the car and the police began their search.

{¶7} Officer Williamson testified that he found a gun and a digital scale with

white powdered residue. Officer Wiliamson testified that he retrieved the gun from

underneath the driver’s seat, and that the gun was “deep in there.” Similarly, admitted

portions of Officer Williamson’s BWC footage showed that he opened the center

console and sifted through its contents, removing chargers, hand sanitizer, and

miscellaneous papers and receipts before finding the scale buried at the bottom of the

console.

{¶8} Neither officer testified that they observed Smith engage in any furtive

4 OHIO FIRST DISTRICT COURT OF APPEALS

movements, or that Smith seemed nervous.

{¶9} Suzanne Elliot, a forensic chemist for the Hamilton County Crime Lab,

stated that the powdered substance tested positive for methamphetamine and Delta-

9 THC, and submitted her report corroborating her findings.

{¶10} Smith was found guilty on all counts. For the drug-paraphernalia

conviction, Smith was sentenced to a suspended jail term of 30 days and was placed

on community control for one year. For Smith’s unlawful-carrying-of-a-concealed-

weapon and improper-handling convictions, Smith was sentenced to a suspended jail

term of 180 days and was placed on community control for one year. This appeal

followed.

II. Analysis

{¶11} On appeal, Smith raises four assignments of error. Smith first contends

that the court abused its discretion when it refused to consider his untimely motion to

suppress. He then argues that his drug-paraphernalia, improper-handling, and

carrying-a-concealed-weapon convictions were not supported by sufficient evidence

and were against the manifest weight of the evidence. Smith’s third and fourth

assignments of error involve errors conceded by the State. Because our analysis of the

second assignment of error renders the remaining assignments moot, we only address

Smith’s second assignment of error.

A. Sufficiency

{¶12} Smith’s second assignment of error asserts that the State failed to

establish that he constructively possessed the gun and digital scale.

{¶13} A sufficiency challenge requires that we review “whether the evidence

presented, when viewed in a light most favorable to the prosecution, would allow any

rational trier of fact to find the essential elements of the crime beyond a reasonable

5 OHIO FIRST DISTRICT COURT OF APPEALS

doubt.” State v. Dunn, 2024-Ohio-5742, ¶ 28, quoting State v. Dent, 2020-Ohio-6670,

¶ 15.

{¶14} To establish constructive possession, the State must demonstrate that

the defendant had “knowledge of an illegal substance or goods and the ability to

exercise dominion or control over the substance or the premises on which the

substance is found.” State v. Cook, 2024-Ohio-4771, ¶ 19 (1st Dist.), quoting State v.

Williams, 2023-Ohio-4667, ¶ 13 (1st Dist.). Constructive possession may be

established through circumstantial evidence. State v. Hicks, 2023-Ohio-2209, ¶ 10

(1st Dist.), citing State v. English, 2010-Ohio-1759, ¶ 32 (1st Dist.). “Knowledge may

in turn be inferred based upon a defendant’s control and awareness of the premises.”

Cook at ¶ 19, quoting Williams at ¶ 13, citing State v. Thomas, 2003-Ohio-1185, ¶ 11

(1st Dist.). However, we have recognized that proximity alone is not dispositive to

establish knowledge. Id. at ¶ 20, citing Williams at ¶ 13, citing State v. Kingsland,

2008-Ohio-4148, ¶ 13 (4th Dist.).

{¶15} This court has often paired a defendant’s proximity to contraband with

circumstantial evidence to establish constructive possession. In State v. Thompson,

2025-Ohio-4359, ¶ 111-115 (1st Dist.), we held that guns found on the defendant’s bed,

and next to mail addressed to the defendant established constructive possession. In

Cook, we held that there was sufficient evidence to establish that the defendant

constructively possessed drugs to support a trafficking conviction because the drugs

were in plain view, immediately next to the defendant, and the defendant had other

trafficking indicia on his person. Cook at ¶ 22-23. In State v. Hicks, 2023-Ohio-2209,

¶ 10 (1st Dist.), we held that a police officer’s testimony that the back seat passenger

kept adjusting a blanket, that was ultimately concealing a rifle, was sufficient

circumstantial evidence to establish constructive possession.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶16} Other courts have reached a similar conclusion based on different kinds

of circumstantial evidence. In State v. Philpott, 2020-Ohio-5267, ¶ 49 (8th Dist.), the

Eighth District held constructive possession was established where the arresting

officer testified that he saw the driver leaning down within his car, which

demonstrated that he constructively possessed a gun that was later retrieved from

under a floormat beneath the driver’s seat. See State v. Tisdel, 2006-Ohio-6763, ¶ 28

(8th Dist.) (reaching the same conclusion). In State v. Dodson, 2011-Ohio-1092, ¶ 22-

26 (10th Dist.), the Tenth District’s affirmance of the defendant’s conviction relied on

the fact that the contraband was retrieved from under the driver’s seat, and that the

defendant stipulated that he owned the car. In State v. McCain, 2018-Ohio-4368, ¶ 52

(3d Dist.), the Third District held that a defendant’s furtive movements in an area

where contraband was ultimately found were indicative of the defendant’s knowledge

and possession of the contraband.

{¶17} We first address Smith’s challenge to the conclusion that he

constructively possessed the gun, before addressing his challenge related to the digital

scale.

1. The Gun

{¶18} In In re D.L., 2025-Ohio-1519 (1st Dist.), we recently decided a

constructive possession challenge involving similar facts.

{¶19} In D.L., the juvenile delinquent was the driver and sole occupant in a

car that he did not own. Id. at ¶ 6, 27. Prior to police initiating the traffic stop, officers

testified that they observed D.L. driving into a parking lot, pausing for a few minutes,

only to commit an improper turn out of the parking lot and continue on his previous

route. Id. at ¶ 4-5. Officers testified that this behavior “raised a flag” that D.L. did not

want to drive in view of the police. Id. at ¶ 4, 26-27. While the arresting officer testified

7 OHIO FIRST DISTRICT COURT OF APPEALS

that D.L. was nervous, he based his determination on “a gut feeling” and could not

identify any observed behavior that would support this determination. During the

traffic stop, officers observed a black bag strap in plain view protruding from under

the driver’s seat. Id. at ¶ 7. Police withdrew the bag and then retrieved a gun from

within the bag. D.L. was adjudicated delinquent for acts that if committed by an adult

would have constituted unlawful carrying of a concealed weapon, improper handling

of a firearm in a motor vehicle, and receipt of stolen property.

{¶20} We affirmed D.L.’s adjudications and held that there was sufficient

evidence to establish constructive possession. We considered the circumstances

surrounding the location of the gun, including that the bag was located under the

driver’s seat, that D.L. was the sole occupant of the car, and that the bag’s strap was in

plain view and was within D.L.’s reach. Id. at ¶ 25-26. We also considered the police

officers’ testimony that D.L. engaged in evasive driving once police were behind D.L.’s

car. Id. at ¶ 27. We conceded that the evidence in D.L. was “not strong,” but under the

generous deference we afford the State while conducting a sufficiency review, we

ultimately held that the State put forth sufficient evidence to establish constructive

possession. Id.

{¶21} Smith’s case is distinguishable from D.L. No part of the gun was in plain

view, nor was the gun readily accessible. To the contrary, Officer Williamson described

the gun’s location as being deep under the driver’s seat. Neither officer testified that

Smith engaged in any furtive movements, nor did either officer testify that based on

their observation of Smith’s behavior that they believed that something was amiss.

While the officers mentioned that it took Smith two blocks to pull over on McMicken

Avenue, neither officer testified that based on their experience this raised a similar

“flag” as the officers testified that D.L.’s actions had. See D.L., 2025-Ohio-1519, at ¶ 27

8 OHIO FIRST DISTRICT COURT OF APPEALS

(1st Dist.).

{¶22} In D.L., we recognized that the evidence in that case was weak. Id. Here,

the State put forth even less evidence to establish that Smith constructively possessed

the gun.

{¶23} Despite the lack of circumstantial evidence, the State still contends that

there is sufficient evidence to support Smith’s convictions. However, to adopt the

State’s position based on the present record, we would be creating a strict-liability

standard by which any lone driver, regardless of whether he owns the car he happens

to be driving, would constructively possess all contraband near the driver. To do so

would disregard our long-established principle that a driver’s proximity alone is not

enough to establish constructive possession.

{¶24} Therefore, we hold that the State did not put forth sufficient evidence to

establish that Smith constructively possessed the gun.

2. The Digital Scale

{¶25} We have also addressed a similar set of circumstances concerning a

defendant’s proximity to contraband found within the center console. In State v.

Devaughn, 2020-Ohio-651 (1st Dist.), police received a tip from a confidential

informant that drugs were being kept in a Mazda at a specific location. Id. at ¶ 3. Police

observed the defendant park behind the Mazda, open the Mazda’s door and lean in,

but did not observe what the defendant did inside of the car. Id. at ¶ 4. While the

defendant ultimately fled in his own car, police were able to search the Mazda and

found drugs at the top of the car’s center console. On appeal, we reversed the

defendant’s possession and trafficking convictions for failure to establish that he

constructively possessed the drugs. We considered that the defendant was not the

registered owner of the car, the defendant was not observed accessing the console or

9 OHIO FIRST DISTRICT COURT OF APPEALS

placing any items in the car, police had not observed him drive the car, and there was

no DNA or fingerprints recovered from the car or the drugs. Id. at ¶ 35; compare State

v. Williams, 2004-Ohio-1130, ¶ 34 (4th Dist.) (holding that the driver constructively

possessed drugs at the top of the center console’s contents, next to a receipt bearing

the driver’s name, where the car smelled of marijuana and the driver had ready access

to the drugs).

{¶26} Like in Devaughn, the evidence linking Smith to the digital scale is

insufficient. The State relied on the fact that Smith was the driver and sole occupant

and was near the scale at the time of the stop. No additional evidence was introduced

showing that the center console contained any receipts or personal effects that would

link the scale to Smith, nor was there any testimony that Smith frequently drove or

operated the car. The State did not introduce any DNA or fingerprint evidence that

would have shown that Smith exercised control over the scale. The State did not

present any testimony that Smith engaged in furtive behavior or that he seemed

nervous.

{¶27} This court has yet to take the position that a driver is responsible for all

contraband contained with a car, and rightly so. To do so would create the problematic

proposition that any driver, even if they are borrowing a car, would be strictly liable

for all contraband found in the car. We decline to do so.

{¶28} Therefore, we hold that the State failed to present sufficient evidence to

establish that Smith constructively possessed the scale. The second assignment of

error is sustained.

{¶29} Our holding that Smith’s convictions were not based on sufficient

evidence renders Smith’s remaining assignments of error related to the denial of his

motion to suppress, his manifest-weight challenge, as well as the errors conceded by

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the State moot.

III. Conclusion

{¶30} Having found that Smith’s drug paraphernalia and firearm convictions

were not supported by sufficient evidence, we reverse the judgment of the trial court

and discharge Smith from further prosecution for these offenses.

Judgments reversed and appellant discharged.

ZAYAS, P.J., and CROUSE, J., concur.