State v. Ware

2013 Ohio 4492

• Court: Ohio Court of Appeals
• Decided: October 10, 2013
• Docket: 99374
• Status: Published

Opinion

[Cite as State v. Ware, 2013-Ohio-4492.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99374

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ABRAM D. WARE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-561300

BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and Blackmon, J.

RELEASED AND JOURNALIZED: October 10, 2013 ATTORNEY FOR APPELLANT

Mark Gallagher Towards Employment, Inc. 1255 Euclid Avenue Suite 300 Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Patrick J. Lavelle Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Appellant, Abram D. Ware, brings the instant appeal challenging his

convictions for drug trafficking, drug possession, and possession of criminal tools.

Appellant claims the trial court improperly ordered the forfeiture of property and erred by

allowing inadmissible hearsay. He also claims his convictions are unsupported by

sufficient evidence and are against the manifest weight of the evidence. After a thorough

review of the record and law, we affirm appellant’s convictions for drug trafficking and

possession of criminal tools, but vacate the verdicts in favor of forfeiture and remand for

proper hearing.

I. Factual and Procedural History

{¶2} On April 11, 2012, appellant was indicted by the Cuyahoga County Grand

Jury on two counts of drug possession, two counts of drug trafficking, and one count of

possession of criminal tools; all charges also included forfeiture specifications in

violation of R.C. 2941.1417. Prior to trial, appellant filed a motion in limine to exclude

an item of evidence, a rent receipt, recovered during the execution of a search warrant.

The trial court ruled that the receipt was admissible. A jury trial then commenced on

November 6, 2012.

{¶3} Cleveland Police executed a search warrant on the upper level apartment of a

divided house on East 130th Avenue in Cleveland, Ohio, at approximately 8:30 p.m. on

February 29, 2012. Inside, they found the trappings of a small drug distribution

operation, but no one was home. Detective Robert McKay of the Cleveland Police Department testified that items seized included a flack jacket, empty plastic bags with

heroin and cocaine residue, glass jars and measuring cups with drug residue, rolls of

blank Ohio lottery papers,1 scales with drug residue, 31.64 grams of cocaine, and 10.09

grams of heroin.

{¶4} The warrant resulted from a citizen tip about appellant selling drugs. After

the tip, appellant became the target of a substantial surveillance operation conducted by

the Cleveland Police Department. Detective McKay testified that appellant was under

surveillance from late January 2012 to the end of February and was observed making

various brief hand-to-hand transactions with numerous people throughout this time. 2

Detective McKay testified that appellant was often seen outside of the East 130th Avenue

house meeting various people who stopped by for very brief visits. Other times,

detectives followed him to nearby areas where he was observed making hand-to-hand

transactions with others.

{¶5} Detective John Hall also testified that he conducted surveillance. He

observed appellant at the apartment behaving in a manner that he classified consistent

with drug activity, including hand-to-hand transactions. He and Detective McKay also

1 Detective McKay testified that these are used as packaging for individual doses of heroin. 2 Appellant was in jail from February 7 to February 14, 2012, and no drug activity was observed at the house on East 130th during that period, even though surveillance continued. observed a female living at the residence, Vanitra Harris, but did not observe her

engaging in any drug-related activities.

{¶6} Ms. Harris testified that she lived with appellant at the apartment prior to

February 10, but after a domestic dispute that resulted in appellant’s arrest, she moved out

and did not see appellant again. She testified she did not see any drugs while she lived at

the apartment. She identified a coat depicted in a photograph taken by police at the

apartment as belonging to appellant. She testified that she purchased the coat for

appellant as a Christmas present. Heroin and crack cocaine were found in a pocket of the

coat when the search warrant was executed. The coat was initially identified as a female

jacket on the property inventory sheet. However, Harris testified it was a unisex coat that

belonged to appellant. Unfortunately, the coat was not taken into evidence.

{¶7} Harris also testified that a third individual, Joseph Moore, briefly lived at the

apartment, but moved out by February 6, 2012. Detective Hall testified he was aware of

Moore, Cleveland police were conducting a separate investigation of him, and he was not

seen living at the apartment after February 14, 2012.

{¶8} On November 9, 2012, the jury returned verdicts of guilty on two counts of

drug possession in violation of R.C. 2925.11(A), two counts of drug trafficking in

violation of R.C. 2925.03(A)(2), and one count of possession of criminal tools in

violation of R.C. 2923.24(A). A sentencing hearing was conducted on December 12,

2012. There, the trial court merged each count of drug possession with the

corresponding counts of drug trafficking. The court then imposed a seven-year sentence for trafficking cocaine, to be served concurrently to a four-year term for trafficking

heroin. The court also imposed a concurrent sentence of time served for possession of

criminal tools and advised appellant of five years of community control.

{¶9} Appellant now appeals from his convictions assigning four errors:

I. The trial court erred in ordering the forfeiture of property without conducting a proper hearing.

II. The trial court erred in allowing hearsay testimony showing appellant occupied the premises

III. The trial court erred in overruling [appellant’s] motion for acquittal as there was insufficient evidence to convict him of the charges in this case.

IV. The verdict was against the manifest weight of the evidence.

II. Law and Analysis

A. Forfeiture

{¶10} At the close of the state’s case, appellant executed a waiver of his right to

trial by jury for the forfeiture specifications only. The trial court accepted the waiver and

was to act as the trier of fact for the forfeiture specifications. However, the record does

not indicate that the trial court ever conducted a hearing on these specifications, even

though the journal entry of conviction indicates the jury found appellant guilty of the

forfeiture specifications. The state concedes this error. It asks this court to vacate the

verdicts on the forfeiture specifications and remand for a proper hearing. So we shall.

B. Hearsay Evidence

{¶11} Appellant next argues that the trial court erred when it allowed Detectives

McKay and Hall to testify about a rent receipt found in the bedroom of the apartment during the execution of the search warrant. The receipt was dated February 21, 2012,

and made out to appellant for $400 for rent from January to February for the apartment.

Appellant claims this testimony and the introduction of the receipt should not have been

allowed.

{¶12} Generally, pursuant to Evid.R. 104, the introduction of evidence at trial falls

within the sound discretion of the trial court. State v. Heinish, 50 Ohio St.3d 231, 553

N.E.2d 1026 (1990). However, in the present case, appellant failed to object to the

challenged testimony or exhibit. Appellant filed a motion in limine to exclude the rent

receipt prior to trial. The trial court heard arguments from both sides and ruled that the

receipt would be allowed. During trial, appellant never objected to testimony about or

introduction of the receipt.

{¶13} A motion in limine is a preliminary ruling indicating how the court would

rule on an issue at trial. It is subject to change, and therefore not final or determinative.

An adverse ruling on a motion in limine does not relieve defense counsel of a duty to

object at trial. “[T]he denial of a motion in limine does not preserve a claimed error for

review in the absence of a contemporaneous objection at trial.” State v. Hill, 75 Ohio

St.3d 195, 203, 661 N.E.2d 1068 (1996). Because there was no objection at trial,

appellant has waived all but plain error. State v. Hancock, 108 Ohio St.3d 57,

2006-Ohio-160, 840 N.E.2d 103, ¶ 60. “An error is plain error only if the error is

obvious, and ‘but for the error, the outcome of the trial clearly would have been otherwise.’” (Citations omitted.) Id., quoting State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph two of the syllabus.

{¶14} The admission of the rent receipt would not have changed the outcome of

the trial. Therefore its admission, even if improper, was not plain error. The rent receipt

was a piece of evidence that tended to establish appellant’s presence at the East 130th

apartment, but it was not the only evidence. Detectives McKay and Hall both testified

that appellant was observed living in the apartment up to and including the day of the

execution of the search warrant. The detectives admitted that no items were

fingerprinted or checked for DNA, but after Ms. Harris moved out of the apartment,

appellant was the only person observed living there. The rent receipt was cumulative

evidence establishing appellant’s presence in the apartment. Its admission was not plain

error.

C. Sufficiency and Manifest Weight of the Evidence

{¶15} Next, appellant claims his convictions for drug trafficking, drug possession,

and possession of criminal tools are unsupported by sufficient evidence and against the

manifest weight of the evidence.

{¶16} This court has set forth a concise statement of its role when reviewing

whether a conviction is supported by sufficient evidence:

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 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. Boyce, 8th Dist. Cuyahoga No. 93543, 2010-Ohio-3870, ¶ 13, citing State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

When reviewing a claim challenging the manifest weight of the evidence, the court, after reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact 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, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of the evidence should be reserved for only the exceptional case in which the evidence weighs heavily against the conviction. Id.

State v. Harris, 8th Dist. Cuyahoga Nos. 98183 and 98184, 2013-Ohio-484, ¶ 20.

{¶17} Appellant was convicted of possessing drugs in violation of R.C.

2925.11(A), drug trafficking in violation of R.C. 2925.03(A)(2), and possessing criminal

tools in violation of R.C. 2923.24(A). Each provides, respectively,

No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.

No person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.

No person shall possess or have under the person’s control any

substance, device, instrument, or article, with purpose to use it criminally. {¶18} Here, the state showed through circumstantial evidence that appellant

constructively possessed and distributed or prepared for distribution heroin and cocaine.

{¶19} 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.” However, constructive possession “exists when an individual exercises

dominion and control over an object and requires a showing that the person was

conscious of the presence of the object. Constructive possession may be shown by

circumstantial evidence.” (Citations omitted.) State v. Washington, 8th Dist. Cuyahoga

Nos. 98882 and 98883, 2013-Ohio-2904, ¶ 22. “In order to prove an essential element of

a crime the circumstantial evidence must be irreconcilable with any reasonable theory of

the accused’s innocence.” (Citations omitted.) State v. Hankerson, 70 Ohio St.2d 87,

91-92, 434 N.E.2d 1362 (1982).

{¶20} The evidence adduced at trial indicates appellant was the sole resident of the

East 130th Avenue apartment at the time the search warrant was executed. He was

observed in the apartment late in the evening on February 28 into the early morning of

February 29. The search warrant was then executed on the evening of February 29,

2012, when officers found heroin, cocaine base, scales, and other items used in the

distribution of these drugs. Many of these items were sitting out in plain view when

officers executed the search warrant, although the drugs were not. {¶21} The mere fact that drugs were found in the apartment is generally not

sufficient to demonstrate constructive possession, but there is additional evidence in the

present case. Officers conducted significant surveillance of appellant and observed

numerous interactions between appellant and others indicative of drug sales. Drugs were

found in a coat identified as belonging to appellant. This coupled with appellant’s sole

occupation of the apartment at the time of the search are sufficient to demonstrate

constructive possession.

{¶22} In Harris, 8th Dist. Cuyahoga Nos. 98183 and 98184, 2013-Ohio-484, this

court held that the state effectively demonstrated constructive possession where drugs

were found in the defendant’s room. The evidence, as recited by this court, was that

upon executing the search warrant, appellant was found in the home, that a utility bill belonging to appellant was found in the bedroom of the home with the bar, that the room was secured with a padlock, and that a glass tube with burnt crack cocaine residue was located on the bar in appellant’s bedroom and small pieces of “chore boy” were found in plain view.

Id. at ¶ 22. Here, the evidence is very similar with the exception of the presence of

appellant in the apartment at the time of the search. However, the detectives’ testimony

established appellant’s presence and residence at the apartment.

{¶23} Appellant also claims the jacket in which a portion of the cocaine and heroin

were found was identified as a women’s jacket, and therefore must have belonged to

someone other than appellant; presumably Harris. Harris testified she removed her

belongings from the house on February 10, 2012, and that she purchased the coat for appellant as a Christmas present. Detective Hall also testified that the jacket was later

determined to be a male’s jacket, but that the inventory sheet was not corrected.

{¶24} Therefore, appellant’s convictions for drug possession, drug trafficking, and

possession of criminal tools are supported by sufficient evidence.

{¶25} For these same reasons, the verdicts are not against the manifest weight of

the evidence. Therefore, appellant’s third and fourth assignments of error are overruled.

III. Conclusion

{¶26} Appellant’s convictions for drug possession, drug trafficking, and

possession of criminal tools are supported by sufficient evidence and are not against the

manifest weight of the evidence. Also, the trial court did not commit plain error when it

allowed the introduction of a rent receipt as an exhibit. However, the trial court failed to

conduct a hearing regarding the forfeiture specifications, so those convictions must be

vacated and the case remanded for hearing.

{¶27} This cause is affirmed in part, reversed in part, and remanded to the lower

court for further proceedings consistent with this opinion.

It is ordered that appellant and appellee share the 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 convictions 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.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and PATRICIA A. BLACKMON, J., CONCUR