Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-545705, CR-550431
ATTORNEY FOR APPELLANT: R. Brian Moriarty R. Brian Moriarty, L.L.C.
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Kristen M. Karkutt Assistant County Prosecutor The Justice Center.
BEFORE: Stewart, A.J., Keough, J., and McCormack, J.
JOURNAL ENTRY AND OPINION
MELODY J. STEWART, ADMINISTRATIVE JUDGE.
(¶1} The state brought two drug cases against defendant-appellant Randy A. Flachbart: in CR-545705, Flachbart was charged with ten counts of trafficking and possession of Oxycodone and marijuana, along with a single count of possession of criminal tools; in CR-550431, he was charged with nine counts of trafficking and possession of marijuana, Oxycodone, and methamphetamine, along with a single count of possession of criminal tools. The cases were joined for trial, and Flachbart waived a jury. After the state finished its case-in-chief, Flachbart absconded and was tried in absentia. The court found him guilty of all ten counts in CR-545705 and guilty of six counts in CR-550431. Flachbart remained at-large for nearly ten months before his capture and subsequent sentencing. In this appeal, his two assignments of error complain that (1) the state offered insufficient evidence to show that he possessed 87 pills of Oxycodone as charged in CR-550431; (2) the state offered insufficient evidence of the weight of the marijuana as charged in CR-550431; and (3) the counts relating to possession of Oxycodone as charged in CR-545705 were against the manifest weight of the evidence.
(¶2} Flachbart first argues that there was insufficient evidence presented in CR-550431 to prove that he possessed a pill bottle containing 87 unit doses of Oxycodone. The police recovered the pill bottle from the pocket of a man's jacket placed in a laundry basket in the home where Flachbart resided, but he argues that the state offered no evidence to prove that the jacket belonged to him.
(¶3} The state charged Flachbart with drug possession under R.C. 2925.11(A). That section states: "No person shall knowingly obtain, possess, or use a controlled substance." Possession can be actual or constructive. State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d 787 (1971). Actual possession entails ownership or physical control, whereas constructive possession is defined as "knowingly exercising dominion and control over an object, even though [the] object may not be within his immediate physical possession." State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus. The state may show constructive possession of drugs by circumstantial evidence alone. State v. Trembly, 137 Ohio App.3d 134, 141, 738 N.E.2d 93 (8th Dist.2000).
(¶ 4} We determine whether the evidence is sufficient to sustain a verdict by examining the evidence in the light most favorable to the prosecution and determining whether any rational trier of fact could have found that the prosecution proved the essential elements of the crime beyond a reasonable doubt. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78, quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d560 (1979).
(¶ 5} Viewing the evidence most favorably to the state shows that information gleaned from an informant caused the police to obtain a search warrant for a house on Moltke Court in Cleveland. After being read his rights, Flachbart said that he wished to cooperate. A police officer testified that Flachbart "assumed full responsibility for everything that was in the house, " saying "it's all mine. They [the other persons in the house] don't have nothing to do with it." The "it" Flachbart referred to was a large quantity of drugs, drug paraphernalia, packaging, and cash. The police also discovered a sheet of paper that appeared to document drug transactions — it contained figures and amounts, consistent with the street price of marijuana, showing "owed, " "pd, " and "got." As relevant to this assignment of error, the police discovered a bottle of pills in the left pocket of a jacket they found in the living room.
(¶ 6} Flachbart argues that the state offered no evidence to show that he possessed the jacket in which the pills were found. We reject this argument for two reasons. First, Flachbart's statement to the police that "it's all mine" was sufficient to cause a rational trier of fact to conclude that he possessed all of the drugs found in the house, including the drugs contained in the pocket of the jacket. Second, even without that statement, the jacket being found in a place where Flachbart resided was strong circumstantial evidence from which a rational trier of fact could find that he owned the jacket and its contents. While constructive possession requires more than that the property is located within the premises under one's control, Hankerson, 70 Ohio St.2d at 91, the presence of pills in the pocket of one's garment is strongly suggestive of possession even if one is not wearing that garment. There was no evidence to show ...