Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Dewitt

Court of Appeals of Ohio, Twelfth District, Warren

May 14, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
RICHARD E. DEWITT, Defendant-Appellant.

          CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 17CR32853

          David P. Fornshell, Warren County Prosecutor, Kirsten A. Brandt, for plaintiff-appellee.

          Gieske Law Office, LLC, Krista M. Gieske, for defendant-appellant.

          OPINION

          S. POWELL, P.J.

         {¶ 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 postrelease control.

         {¶ 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 paraphernalia."

         {¶ 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, ¶ 12.

         {¶ 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 before ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.