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State v. Pari

Court of Appeals of Ohio, Ninth District, Summit

June 7, 2017

STATE OF OHIO Appellee
v.
ROBERT G. PARI Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2015 05 1626(A)

          MARK H. LUDWIG, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN JUDEG.

         {¶1} 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.

         I.

         {¶2} 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.

         II.

         ASSIGNMENT OF ERROR ONE

         THE TRIAL COURT ERRED IN DENYING RULE 29(A) ACQUITTAL AS THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE VERDICTS[]

         {¶3} 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.

         {¶4} 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.

         {¶5} "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.

         {¶6} 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.

         {¶7} 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 (C)(1).

         {¶8} 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).

         {¶9} 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).

         {¶10} 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.

         {¶11} 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.

         {¶12} 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 ...


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