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State v. Perkins

Court of Appeals of Ohio, Twelfth District

August 5, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
CARL PERKINS, Defendant-Appellant.

CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 12-CR-10958

Martin P. Vote!, Preble County Prosecuting Attorney, Eric E. Marit, Preble County Courthouse, for plaintiff-appellee

McClain Anastasi, LLC, Brandon Charles McClain, for defendant-appellant

OPINION

PIPER, J.

{¶ 1} Defendant-appellant, Carl Perkins, appeals his conviction and sentence in the Preble County Court of Common Pleas for possession of marijuana.

{¶ 2} On June 1, 2012, Trooper Shaun Smart initiated a traffic stop after he saw a white Buick Enclave make an unsafe lane change on Interstate 70. The vehicle had four occupants, one of whom was Perkins, who was the front seat passenger. The other occupants included the driver, Michael Robinson, and backseat passengers Helaman Telles and Esteban Sanchez. Trooper Smart, who is an experienced interdiction officer, detected a strong odor of raw marijuana, and asked Robinson to exit the vehicle until backup arrived. Trooper Tip Vonsey arrived as backup, and Troopers Smart and Vonsey had each of the other three occupants exit the vehicle. Trooper Smart then searched the vehicle and located marijuana debris in the console, a cellular phone belonging to Perkins, boxes and bags containing marijuana, and two large bricks of marijuana weighing between 25-30 pounds each.

{¶ 3} Perkins claimed to have no knowledge of the marijuana, and instead claimed that he was only in the vehicle because Robinson asked him to ride along while he picked up a friend from the airport. Perkins and Robinson, who are both from Pennsylvania, offered no explanation as to why they were picking up someone from a Chicago airport, which was approximately a seven hour-drive from their homes.

{¶ 4} Perkins was indicted on one count of possession of marijuana. Perkins pled not guilty to the charge, and the matter proceeded to a two-day trial. The jury found Perkins guilty, and the trial court sentenced him to an eight-year-mandatory term. Perkins now appeals his conviction and sentence, raising three assignments of error.

{¶ 5} Assignment of Error No. 1:

{¶ 6} MR. PERKINS [sic] CONVICTION WAS BASED UPON INSUFFICIENT EVIDENCE PRESENTED AT TRIAL BY THE PROSECUTION.

{¶ 7} Perkins argues in his first assignment of error that his conviction is not supported by sufficient evidence.

{¶ 8} When reviewing the sufficiency of the evidence underlying a crim inal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would support a conviction. State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298. "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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded on other grounds. The credibility of witnesses is primarily a determination for the trier of fact, who is in the best position to observe the witnesses' demeanor, gestures and voice inflections. State v. Benson, 12th Dist. Butler No. CA2009-02-061, 2009-Ohio-6741.

{¶ 9} Perkins focused at trial and on appeal on the lack of direct evidence such as fingerprints, DNA, or traceable profits linking him to the marijuana. However, a conviction can be based on circumstantial evidence alone. State v. Shannon, 191 Ohio App.3d 8, 2010-Ohio-6079, ¶ 10 (12th Dist.). Circumstantial evidence is proof of certain facts and circumstances in a given case, from which the jury may infer other, connected facts, which usually and reasonably follow according to the common experience of mankind. State v. Ortiz-Bajeca, 12th Dist. No. CA2010-07-181, 2011-Ohio-3137. Circumstantial evidence and direct evidence inherently possess the same probative value. Id. In some cases, certain facts can only be established by circumstantial evidence, and a conviction based thereon is no ...


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