Court of Appeals of Ohio, Twelfth District, Warren
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case
P. Fornshell, Warren County Prosecutor, Kirsten A. Brandt,
Law Office, LLC, Krista M. Gieske, for defendant-appellant.
1} Defendant-appellant, Richard E. DeWitt, appeals
from his conviction in the Warren County Court of Common
Pleas after a jury found him guilty of aggravated possession
of drugs and possession of drug paraphernalia. For the
reasons outlined below, we affirm.
2} On April 10, 2017, the Warren County Grand Jury
returned an indictment charging DeWitt with aggravated
possession of drugs in violation of R.C. 2925.11(A), a
second-degree felony pursuant to R.C. 2925.11(C)(1)(c), and
possession of drug paraphernalia in violation of R.C.
2925.14(C)(1), a fourth-degree misdemeanor. The charges arose
when Officer Jeff Little of the Waynesville Police Department
discovered two baggies containing 16.08 grams of
methamphetamine, a glass pipe, a digital scale, and a butane
lighter, after initiating a traffic stop of DeWitt's
vehicle at the intersection of Edwards Drive and High Street
in Waynesville, Warren County, Ohio on the night of March 11,
2017. Following a jury trial, DeWitt was found guilty of both
charges and sentenced by the trial court to a mandatory
three-year prison term. The trial court also notified DeWitt
that he would be subject to a mandatory three-year term of
3} DeWitt now appeals, raising a single assignment
of error for review.
4} THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF
AGGRAVATED POSSESSION OF DRUGS AND POSSESSION OF DRUG
PARAPHERNALIA BECAUSE SAID CONVICTIONS WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
5} In his single assignment of error, DeWitt argues
his conviction must be reversed because it was against the
manifest weight of the evidence. We disagree.
6} In reviewing a manifest weight of the evidence
challenge, this court examines the "inclination of the
greater amount of credible evidence, offered at a trial, to
support one side of the issue rather than the other."
State v. Barnett, 12th Dist. Butler No.
CA2011-09-177, 2012-Ohio-2372, ¶ 14. In conducting such
a review, this court must look at the entire record, weigh
the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether in
resolving the conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new
trial ordered. State v. Morgan, 12th Dist. Butler
Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶
34. "While appellate review includes the responsibility
to consider the credibility of witnesses and weight given to
the evidence, 'these issues are primarily matters for the
trier of fact to decide.'" State v. Barnes,
12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶
81, quoting State v. Walker, 12th Dist. Butler No.
CA2006-04-085, 2007-Ohio-911, ¶ 26. An appellate court,
therefore, will overturn a conviction due to the manifest
weight of the evidence only in extraordinary circumstances
when the evidence presented at trial weighs heavily in favor
of acquittal. State v. Blair, 12th Dist. Butler No.
CA2014-01-023, 2015-Ohio-818, ¶ 43.
7} As noted above, DeWitt was convicted of
aggravated possession of drugs in violation of R.C.
2925.11(A), which provides "[n]o person shall knowingly
obtain, possess, or use a controlled substance or a
controlled substance analog." DeWitt was also convicted
of possession of drug paraphernalia in violation of R.C.
2925.14(C)(1). Pursuant to that statute, "no person
shall knowingly use, or possess with purpose to use, drug
8} As defined by R.C. 2901.22(B), 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." A
defendant's knowledge may be inferred from the totality
of the surrounding circumstances. State v. NRAG,
LLC, 12th Dist. Fayette No. CA2008-12-043,
2009-Ohio-4137, ¶ 22. On the other hand, the term
"possession" 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). Possession may be
constructive or actual. State v. Williams, 12th
Dist. Butler No. CA2014-09-180, 2015-Ohio-2010, ¶ 14.
9} "An accused has 'constructive
possession' of an item when the accused is conscious of
the item's presence and is able to exercise dominion and
control over it, even if the item is not within the
accused's immediate physical possession." State
v. Jester, 12th Dist. Butler No. CA2010-10-264,
2012-Ohio-544, ¶ 25. Constructive possession may be
proven by circumstantial evidence alone. Williams at
¶ 15. This is because "[circumstantial and direct
evidence are of equal evidentiary value." State v.
Frye, 5th Dist. Richland No. 17CA5, 2017-Ohio-7733,
¶ 46, citing State v. Jenks, 61 Ohio St.3d 259,
272 (1991). "Absent a defendant's admission, the
surrounding facts and circumstances, including the
defendant's actions, are evidence that the trier of fact
can consider in determining whether the defendant had
constructive possession." State v. Caudill,
12th Dist. Madison No. CA2017-05-011, 2018-Ohio-550, ¶
10} At trial, Officer Little, the lone witnesses to
testify at trial, testified he received a call on the evening
of March 11, 2017 informing him of a potential impaired
driver near the intersection of Dayton Road and Edwards
Drive. After receiving this call, Officer Little drove his
police cruiser to that intersection where he observed a
single car driving southbound from Dayton Road towards the
corner of Edwards Drive and High Street. Officer Little
testified he then watched as the car rolled through the stop
sign located at the corner of Edwards Drive and High Street