Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No.
0097348, Attorney for Plaintiff-Appellee.
CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, Attorney for
1} Betty L. Turner appeals from her conviction and
sentence following a bench trial on one count of aggravated
drug possession, a fifth-degree felony.
2} In her sole assignment of error, Turner contends
her conviction was against the manifest weight of the
3} At trial, Kettering police officer Jesse Anderson
testified that he pulled over a van in the early morning
hours of January 26, 2017 for a license-plate violation.
(Trial Tr. at 29.) Turner was a front-seat passenger, and a
man named Michael Fox was the driver. A third person, Alfred
Morrow, was a rear-seat passenger. (Id. at 30.) The
occupants explained that Fox was a mechanic who had been
working on the van. (Id. at 30-31.) Anderson had all
three people step out of the vehicle, and he checked their
identification. After Turner exited the van, Anderson
obtained her permission to perform a pat down. (Id.
at 31.) As he began, the officer noticed that Turner
"was clutching some items in her left hand."
(Id. at 32.) When he inquired about them, Turner
told him that she was holding "her cigarettes and her
phone." She then handed him a cell phone and an opened
pack of cigarettes. (Id.) Upon looking at the
cigarette pack, Anderson saw "two cigarettes along with
a clear cellophane Ziploc bag that contained brown
powder." (Id.) The cellophane baggie was inside
the cigarette pack, but the baggie was visible because the
pack was "basically completely open." (Id.
at 32, 35-36.) Anderson suspected that the baggie contained
narcotics. (Id. at 32, 35.) He turned the cigarette
pack toward Turner and inquired about the contents.
(Id. at 35.) She immediately claimed that the pack
belonged to Fox, the driver, despite already having told the
officer that the cigarettes were hers. (Id.)
Subsequent testing established that the brown substance
inside the baggie was approximately .11 grams of
methamphetamine. (Id. at 24.) On cross examination,
Anderson acknowledged that he did not observe any furtive
movements from Turner during the time that she waited in the
van before exiting. (Id. at 42.) He also
acknowledged that she did not try to throw or otherwise
discard the cigarette pack. (Id. at 44.)
4} The only other witness at trial was Turner. She
testified that Fox, the mechanic who was driving the van, had
come to her house to fix it. (Id. at 53-54.) After
repairing a wheel bearing, Fox "made a run" in the
van at approximately 11:00 p.m. to check it out.
(Id. at 54.) According to Turner, making a
"run" meant selling methamphetamine. (Id.
at 54-57.) Turner explained that Fox was an
ex-"crackhead" who she had met 20 years earlier
when she was using crack. (Id. at 55.) After Fox
completed his run, he picked up Turner and Morrow, who
accompanied him on a second drug "run."
(Id.) Officer Anderson made his traffic stop as
Turner and her companions were returning home from the second
run. (Id. at 56.) Turner claimed that Fox had handed
her the cigarette pack four or five minutes before the
traffic stop and had told her that she could have it.
(Id. at 59.) According to Turner, that is why she
told Anderson that the cigarette pack was hers. (Id.
at 63.) She denied having any knowledge, however, that the
pack contained drugs. (Id.)
5} On cross examination, Turner testified that she
did not recall telling a detective, during a post-arrest
interview, that she saw Fox with about "11 grams"
of methamphetamine during the drug "run."
(Id. at 68.) She also testified that she did not
know how many cigarettes were in the pack at issue because
she never looked. (Id.) Turner stated that she did
not recall telling a detective during her post-arrest
interview that there originally were three cigarettes in the
pack but that she had smoked one, leaving only two.
(Id. at 69.) On re-direct examination, Turner
"remembered" that she actually had gone to pick up
Fox to do the drug run, that Fox had given her $20 in
exchange, and that she had used the $20 to buy a "$20
rock." (Id. at 73.) As a result, she was
"high" at the time. (Id.)
6} By stipulation of the parties, the trial court
admitted into evidence an audio recording of Turner's
post-arrest interview with a detective. (Id. at 24,
52.) During the interview, she did tell the detective that
there were three cigarettes in the pack and that she smoked
one. She knew there were two cigarettes left because the top
of the pack was torn off. (State's Ex. 2 at 24:28 -
24:39.) She also told the detective that she saw Fox with an
estimated 11 grams of methamphetamine in his possession
during the drug run. (Id. at 17:10.) When the
detective threatened to have the baggie of drugs found inside
the cigarette pack tested for her DNA, Turner responded,
"Great. Great. I'm innocent."
7} Based on the evidence presented, the trial court
found Turner guilty of aggravated drug possession based on
the .11 grams of methamphetamine found inside the cigarette
pack in her possession. (Trial Tr. at 81.) The trial court
sentenced her to up to five years of community control. (Doc.
# 43.) This appeal followed.
8} Although her assignment of error challenges the
manifest weight of the evidence to support her conviction,
Turner's appellate brief also recites the standards
governing a challenge to the legal sufficiency of the
evidence. She then argues that the State failed to prove she
"knowingly" possessed a controlled substance.
Although Turner admitted having the pack of cigarettes in her
hand, she cites her denial about knowing the pack contained a
baggie of drugs. She also stresses that she did not drop the
cigarette pack or attempt to leave it in the van when she
stepped out. Turner claims this supports an inference that
she did not know drugs were inside the pack. In addition, she
cites her positive reaction on the audio tape when the
detective threatened to have the baggie tested for her DNA.
9} When a defendant challenges the sufficiency of
the evidence, she is arguing that the State presented
inadequate evidence on an element of the offense to sustain
the verdict as a matter of law. State v. Hawn, 138
Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist. 2000).
"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. 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."
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus.
10} Our analysis is different when reviewing a
manifest-weight argument. When a conviction is challenged on
appeal as being against the weight of the evidence, an
appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider witness
credibility, and determine whether, in resolving 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. Thompkins,78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997). A judgment should be reversed as being
against the manifest weight of the evidence "only ...