APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 11CR-5247)
Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Richard Cline & Co., LLC, and Richard A. Cline, for appellant.
(¶ 1} Defendant-appellant, Tommy Edwards ("appellant"), appeals from his convictions in the Franklin County Court of Common Pleas of illegal cultivation of marijuana and possession of marijuana. For the following reasons, we affirm.
(¶ 2} On August 14, 2011, acting on a tip, Officers Keith Abel and Marco Merino of the Columbus Police Department went to 220 Chatterly Lane, Columbus, Ohio, to investigate an alleged report of marijuana growing. Upon arrival, the officers saw a large plant growing on the porch at the front entrance. The plant was tied to and growing up a wooden trellis. The officers recognized the plant as marijuana. While the officers were contacting the narcotics division, appellant walked out of the house and asked the officers if he could help them. Officer Abel asked appellant what was growing on the porch, and appellant responded "[t]hat's weed man." (Tr. 125.) Forensic analysis later confirmed the plant was marijuana, weighing 628 grams.
(¶ 3} Officer Abel further testified that appellant told him he was watering the plant and taking care of it. However, he did not note this in the police report and, on cross-examination, Officer Abel testified that appellant only said that he was watering the plant and that it, therefore, occurred to the officer that appellant had been caring for the plant. He also testified that appellant identified the house as his mother's house and stated that he had resided there "about ten years." (Tr. 125.) Officer Merino testified only that appellant told them it was a "weed plant, man." (Tr. 141.) The officers did not interview appellant's mother and did not enter the house.
(¶ 4} On October 3, 2011, appellant was indicted on one count of illegal cultivation of marijuana, a felony of the fifth degree in violation of R.C. 2925.04, and one count of possession of marijuana, a felony of the fifth degree, in violation of R.C. 2925.11. On October 30, 2012, the case went to trial.
(¶ 5} At the close of the state's case at trial, appellant moved for acquittal pursuant to Crim. R. 29, arguing that there was insufficient evidence to convict him of cultivation or possession of marijuana. The trial court overruled the motion. The jury ultimately returned a verdict finding appellant guilty of both counts. By judgment entry filed November 15, 2012, the trial court sentenced appellant to six months in prison on each count, to be served concurrently with each other and concurrent to sentencing in case No. 10CR-2864.
(¶ 6} Appellant appealed his convictions and assigned the following two errors:
[1.] The trial court erred in denying Defendant's Rule 29 motion for acquittal because insufficient evidence existed to show that Mr. Edwards had knowingly cultivated, or constructively possessed, the marijuana.
[2.] The verdicts were against the manifest weight of the evidence.
(¶ 7} "Because a Crim.R. 29 motion questions the sufficiency of the evidence, '[w]e apply the same standard of review to Crim.R. 29 motions as we use in reviewing the sufficiency of the evidence.' " State v. Walburg, 10th Dist. No. 10AP-1087, 2011-Ohio-4762, ¶ 11, quoting State v. Hernandez, 10th Dist. No. 09AP-125, 2009-Ohio-5128, ¶ 6. "Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate court must determine "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 by constitutional amendment on other grounds as recognized in State v. Smith, 80 Ohio St.3d 89, 102 (1997).
(¶ 8} "While sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence's effect of inducing belief" Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25, citing Thompkins at 386. "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982). " '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.' " Thompkins at ...