FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 2015 05 1626(A)
H. LUDWIG, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
S. CALLAHAN JUDEG.
Appellant, Robert Pari, appeals his conviction and sentence
from the Summit County Court of Common Pleas. This Court
affirms in part and reverses in part.
Mr. Pari was arrested and charged with aggravated possession
of drugs and possessing drug abuse instruments. The case
proceeded to trial and a jury found Mr. Pari guilty of both
offenses. The trial court sentenced Mr. Pari to a
twenty-four-month period of community control and verbally
advised him he could be sentenced to up to twelve months in
prison if he violated his community control. Mr. Pari now
appeals, raising four assignments of error, which have been
reordered for discussion.
OF ERROR ONE
TRIAL COURT ERRED IN DENYING RULE 29(A) ACQUITTAL AS THERE
WAS INSUFFICIENT EVIDENCE TO SUPPORT THE VERDICTS
In his first assignment of error, Mr. Pari argues the trial
court erred when it overruled his Crim.R. 29 motion for
acquittal and submitted the case to the jury for
deliberations when there was insufficient evidence to do so.
This Court disagrees.
Whether the evidence in a case is legally sufficient to
sustain a conviction is a question of law. State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997). "In
essence, sufficiency is a test of adequacy."
Id. This Court reviews questions of law under a de
novo standard. State v. Trifari, 9th Dist. Medina
No. 08CA0043-M, 2009-Ohio-667, ¶ 12.
"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." State v. Jenks, 61 Ohio St.3d 259
(1991), paragraph two of the syllabus. "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." Id.
Mr. Pari contends, even viewing the evidence in a light most
favorable to the prosecution, no rational trier of fact could
have found the essential element of possession as to either
offense. Mr. Pari does not challenge the other elements of
the offenses. Mr. Pari argues the officer had no personal
knowledge that the contraband belonged to him and points out
the difference between the arresting officer's police
report and his trial testimony. As to the latter argument,
this Court notes that the credibility of a witness is
properly addressed under a manifest weight of the evidence
analysis, and is done so below.
The offense of aggravated possession of drugs is committed
when a defendant knowingly obtains, possesses, or uses a
Schedule I or II controlled substance. R.C. 2925.11(A) and
The offense of possessing drug abuse instruments is committed
when a defendant "knowingly * * * possess[es], or use[s]
any instrument, article, or thing the customary and primary
purpose of which is for the administration or use of a
dangerous drug, * * *, when the instrument involved is a
hypodermic or syringe, * * *, and the instrument, * * *
involved has been used by the offender to unlawfully
administer or use a dangerous drug, * * *, or to prepare a
dangerous drug, * * *, for unlawful administration or
use." R.C. 2925.12(A).
Possession or possess "means 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." R.C. 2925.01(K). "A person acts knowingly,
regardless of purpose, when the person is aware that the
person's conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge
of circumstances when the person is aware that such
circumstances probably exist." R.C. 2901.22(B).
It is well settled that "'a person may knowingly
possess a substance or object through either actual or
constructive possession.'" State v. See,
9th Dist. Lorain No. 08CA009511, 2009-Ohio-2787, ¶ 10,
quoting State v. Hilton, 9th Dist. Summit No. 21624,
2004-Ohio-1418, ¶ 16. "'Constructive possession
exists when an individual knowingly exercises dominion and
control over an object, even though that object may not be
within his immediate physical possession.'"
State v. Reis, 9th Dist. Summit No. 26237,
2012-Ohio-2482, ¶ 7, quoting State v. Kendall,
9th Dist. Summit No. 25721, 2012-Ohio-1172, ¶ 14,
quoting State v. Hankerson, 70 Ohio St.2d 87 (1982),
syllabus. As this Court recognizes, "'[t]he crucial
issue is not whether the accused had actual physical contact
with the article concerned, but whether the accused was
capable of exercising dominion [and] control over
it.'" Reis at ¶ 7, quoting State
v. Graves, 9th Dist. Lorain No. 08CA009397,
2011-Ohio-5997, ¶ 15, quoting State v. Ruby,
149 Ohio App.3d 541, 2002-Ohio-5381, ¶ 30 (2d Dist).
Nevertheless, "constructive possession may be inferred
from the drugs' presence in a usable form and in close
proximity to the defendant." State v. Figueroa,
9th Dist. Summit No. 22208, 2005-Ohio-1132, ¶ 8, citing
State v. Thomas, 9th Dist. Summit No. 21251,
2003-Ohio-1479, ¶ 11. "Circumstantial evidence is
itself sufficient to establish dominion and control over the
controlled substance." Hilton at ¶ 16.
On May 18, 2015, Trooper Neil Laughlin effected a traffic
stop on a pickup truck in which Mr. Pari was the front seat
passenger. Mr. Pari and the driver were both nervous and
acting fidgety. According to the trooper, Mr. Pari's
nervousness was extreme and, in his experience, consistent
with people who have something to hide or are engaged in some
type of criminal activity. A subsequent search of the
interior of the vehicle revealed a purse in the center of the
bench seat which contained female items as well as
hydromorphone pills and two loaded syringes. In the bed of
the truck, directly behind the passenger seat, was a black
leather fanny pack containing motorcycle goggles, a cell
phone charger, a Trojan condom, rolling papers, a syringe, a
finger of a latex glove which contained 24 hydromorphone
pills and another piece of rubber which contained cathinone
(bath salts). The truck was registered to Mr. Pari. The
female driver took ownership of the purse and its contents
and told Trooper Laughlin the fanny pack and its contents
belonged to Mr. Pari.
Trooper Laughlin compared the lot number and expiration date
of the condom in the fanny pack to two condoms that were
found in Mr. Pari's pocket during a pat down search and
found them to be identical. He later researched the Trojan
web site and learned that each box of condoms has its own lot
number, and concluded that the three condoms came from the
same box. According to the trooper, Mr. Pari did not want the
driver to know he had condoms. The trooper plugged the phone
charger that was in the fanny pack into Mr. Pari's flip