State v. Tate

114 N.E.3d 411, 2018 Ohio 2765
CourtCourt of Appeals of Ohio, Seventh District, Mahoning County
DecidedJune 29, 2018
DocketNo. 16 MA 0064
StatusPublished
Cited by1 cases

This text of 114 N.E.3d 411 (State v. Tate) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Seventh District, Mahoning County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tate, 114 N.E.3d 411, 2018 Ohio 2765 (Ohio Super. Ct. 2018).

Opinion

WAITE, J.

{¶ 1} Appellant Antoine Tate appeals his conviction on one count of drug possession, in violation of R.C. 2925.11(A), (C)(4)(a), a felony of the fifth degree. His conviction is based on the recovery of less than one-tenth of a gram of a loose substance containing cocaine base or crack cocaine found in the bottom of a waste can during the execution of a search warrant at a residence on the south side of Youngstown, Ohio.

{¶ 2} Appellant contends that there was insufficient evidence to support his conviction and that his conviction is against the manifest weight of the evidence. Appellant further contends that the state failed to establish within a reasonable degree of scientific certainty that the substance in question was cocaine. Finally, he asserts that an erroneous jury instruction affected the outcome of the trial. For the following reasons, Appellant's conviction is affirmed.

Law

{¶ 3} R.C. 2925.11(A) provides that "[n]o person shall knowingly obtain, possess, or use a controlled substance." Possession of a controlled substance may be actual or constructive. State v. Wolery , 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). A person is in "constructive possession" if he is able to exercise dominion and control over an item, even if he does not have immediate physical possession of it. State v. Hankerson , 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus, overruled on other grounds in State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), syllabus; State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 247. For constructive possession to exist, the person must be conscious of the presence of the object. Id. at 91, 434 N.E.2d 1362.

{¶ 4} Constructive possession may be proven by circumstantial evidence alone, but dominion and control may not be inferred based exclusively on access to the substance or through ownership or occupation of the premises where the substance *415is found. State v. Soto , 8th Dist. No. 86390, 2006-Ohio-2319, 2006 WL 1281009, ¶ 27, citing, in part, R.C. 2925.01(K). Moreover, two or more persons may have joint constructive possession of the same object. State v. Smith , 8th Dist. No. 78277, 2001 WL 563077, at *3 (May 24, 2001) ("Joint possession exists when two or more persons together have the ability to control an object, exclusive of others.")

{¶ 5} Additionally, evidence of drug use in the common areas of a residence, (for instance, where cocaine residue is found on a CD case, in a frying pan, and on a scale) bolsters the inference that a defendant is fully conscious there are drugs in his home. State v. Hudson , 11th Dist., 2018-Ohio-133, 104 N.E.3d 25, ¶ 55, citing State v. Molina , 8th Dist. No. 83731, 2004-Ohio-4347, 2004 WL 1846133, ¶ 27, (finding defendant was aware of drug trafficking based on the "casual and pervasive presence of heroin and tools of trafficking" in her apartment.)

Facts

{¶ 6} As earlier stated, the charges at issue stemmed from the execution of a search warrant at a Youngstown residence. Five Youngstown Police Department officers and a forensic scientist from the Bureau of Criminal Identification and Investigation offered testimony at trial. Each officer testified to his closely-circumscribed role in the execution of the warrant at 833 Mercer Street, leaving the jury and the record on appeal with a somewhat incomplete narrative of the evening's events.

{¶ 7} Officer Francis Bigowsky testified that he was a scout, and that he surveilled various properties in the city for the purpose of detecting unlawful drug activity. His interest in the Mercer Street address was based on complaints about alleged drug sales at the residence and information from a confidential informant regarding the sale of crack cocaine. (Trial Tr., pp. 111-112.)

{¶ 8} Although Officer Bigowsky was not a member of the entry team, he did participate in the search as a "float," that is, an officer who is not assigned to search a specific part of the residence. In the living room, Officer Bigowsky recovered a Time Warner cable bill addressed to Appellant at the 833 Mercer Street address. (Trial Tr., p. 116.) He also recovered three digital scales, two in a drawer in the kitchen, and one in a cereal box on the top of the refrigerator, (Trial Tr., pp. 114, 127), as well as a loose substance at the bottom of a waste can in the kitchen, which field tested positive for cocaine. (Trial Tr., pp. 114, 118.) But for this substance, the waste can was empty. (Trial Tr., p. 115.)

{¶ 9} On cross-examination, Officer Bigowsky conceded that another man, Darrell Watkins, was present at the residence with Appellant when the search warrant was executed. (Trial Tr., p. 131.) He also conceded that neither the waste can nor the scales were dusted for fingerprints or tested for DNA. (Trial Tr., p. 128.) He estimated that the search warrant team numbered anywhere between ten to fifteen men. (Trial Tr., p. 125.)

{¶ 10} Officer Richard Geraci testified that there were "a few males" in the residence when the officers gained entry. He explained that the officers knocked and announced their presence, but when no one answered, they used force to open the door. (Trial Tr., p. 136.) Officer Geraci testified that, in his experience, occupants who do not answer the door are trying to get rid of evidence inside the house. (Trial Tr., p. 137.)

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Cite This Page — Counsel Stack

Bluebook (online)
114 N.E.3d 411, 2018 Ohio 2765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tate-ohctapp7mahonin-2018.