State v. Marr , 2020 Ohio 3898 ( 2020 )

[Cite as State v. Marr, 2020-Ohio-3898.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28604
:
v. : Trial Court Case No. 2018-CR-4851/1
:
WILLIAM MARR : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 31st day of July, 2020.
...........
MATHIAS H. HECK JR. by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 West Monument Avenue, Dayton, Ohio
45402
Attorney for Defendant-Appellant
.............
HALL, J.
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{¶ 1} William Marr appeals from his conviction on charges of aggravated
possession of drugs, having a weapon while under disability, possession of heroin, and
possession of drug paraphernalia.1
{¶ 2} Marr advances two assignments of error. First, he contends his convictions
were against the manifest weight of the evidence. Second, he claims prosecutorial
misconduct deprived him of a fair trial.
{¶ 3} The present appeal stems from a traffic stop that occurred on the night of
December 28, 2018. Around 10:30 p.m., West Carrollton patrol officer John Perry
observed a truck driven by Marr make an illegal left turn. Perry proceeded to make a
traffic stop. As he approached the driver’s side of the vehicle, Perry noticed a piece of
opaque plastic in the rear window partially obstructing his view of the passenger’s side of
the vehicle. As he got closer, however, the officer could see a front-seat passenger who
was later identified as Brian Eades.
{¶ 4} After checking identification for both men, Perry spoke with Marr outside of
the truck. The officer asked whether the truck contained anything illegal. Marr responded,
“As far [as] I’m concerned, no.” (Trial Tr. Vol. II at 142.) Perry then requested permission
to search the truck, and Marr responded, “As long as I don’t get in trouble for anything.”
(Id.) Perry “didn’t really take that as a yes or no answer[.]” (Id. at 144.) After additional
discussion, however, Marr granted the officer unambiguous consent to search. At that
point, a second officer had arrived to assist. Eades exited the truck and granted Perry
1 A jury also found Marr guilty of other offenses that the trial court merged into those set
forth above for sentencing.
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permission to search him. The search resulted in the discovery of a digital scale in Eades’
coat pocket. The scale was coated with a crystal substance suspected to be
methamphetamine. After finding the scale in Eades’ possession, Perry began searching
the truck. He found a black plastic handgun on the back driver’s side floorboard. The
plastic gun was not a real weapon. Perry also saw a cup holder between the front seats.
It was slightly ajar with the side toward the driver raised up. Perry lifted the cup holder
and found a large bag of what appeared to be methamphetamine, a loaded black revolver,
a silver tin, and a methamphetamine pipe under a black pouch. The tin contained 10 gel
capsules.
{¶ 5} After being Mirandized and agreeing to speak with Perry, Marr stated that the
only illegal item he knew about in the truck was the pipe, which had been found
underneath the other items. When asked specifically whether he knew anything about the
drugs or the gun, Marr stated that he had been with Eades a couple of days earlier when
Eades had purchased a revolver-style handgun. As a trained evidence technician, Perry
unsuccessfully attempted to obtain fingerprints from various locations on the handgun.
He also was unable to obtain fingerprints from the other items. No DNA testing was done
on any of the items because the crime lab would “not accept touch DNA on non-violent
felonies.” (Id. at 170.)
{¶ 6} On cross-examination, Perry acknowledged that he searched Marr and did
not find any drugs or other contraband. Perry also agreed that the opaque plastic in the
truck’s rear window prevented him from seeing what Eades was doing as he followed the
vehicle prior to the stop. In addition, while speaking with Marr outside the truck, Perry only
could see Eades, who remained inside the truck, from about his “mid-back” up. He did
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not observe any furtive movements by Eades. Perry estimated that it would have taken
15 to 30 seconds for someone to lift the cup holder and place the contraband underneath
it. The officer also recognized that either occupant of the truck could have lifted up the
cup holder to place items there. Perry additionally testified that Marr denied knowing the
handgun or the drugs were inside the truck. Finally, Perry acknowledged that Eades had
pled guilty to a weapon-under-disability charge based on his possession of the black
revolver found under the cup holder.
{¶ 7} The next witness at trial was Sarah Mikell, a forensic scientist with the Ohio
Bureau of Criminal Investigation. She testified that the plastic bag referenced above
contained methamphetamine. The 10 capsules contained a mixture of tramadol, heroin,
fentanyl, and acetyl fentanyl. The only other prosecution witness was John Garwood, a
West Carrollton police officer. He stated that he tested the operability of the black revolver
in Marr’s truck and found it to be operable.
{¶ 8} The final witness at trial was Eades, who was called by the defense. At the
outset of Eades’ testimony the trial court made clear in open court that as a result of his
plea agreement with the State no drug charges could be brought against him based on
his testimony. (Id. at 228.) Eades proceeded to testify that the black revolver belonged to
him and that it had been located on his person prior to the traffic stop. Eades likewise
testified that the drugs found under the cup holder belonged to him. Eades testified that
Marr had no control over the drugs. (Id. at 232.) He explained that he had placed the
drugs on the front passenger’s side floorboard near his feet while riding around prior to
the traffic stop. According to Eades, the drugs “weren’t concealed” while the two men
were riding around. Eades testified that he moved the drugs and placed them under the
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cup holder after officer Perry got behind the truck and activated his overhead lights. Eades
stated that he did not ask Marr for permission to place the drugs there, and Marr did not
tell him to put the drugs there. According to Eades, it took him only “a second or two” to
place everything under the cup holder, and Marr was busy driving at the time. Eades also
testified that Marr never touched any of the contraband items, which were not visible to
him after being placed under the cup holder.
{¶ 9} On cross-examination, Eades admitted having pled guilty to possessing the
revolver at issue. He also admitted having a history of drug use and completing a drug
rehabilitation program. Eades stated that he and Marr had been friends for a couple of
years. When asked how they met, Eades responded that they had met in the Madison
Correctional Institution. The prosecutor then asked, “So that’s in prison?” Eades
responded affirmatively. (Id. at 239.) Eades acknowledged that he and Marr had smoked
“meth” together on the day of the traffic stop. With regard to the black revolver, Eades
testified that he had purchased it from a friend and that Marr had been with him at the
time. Eades also agreed that he had denied knowing anything about the drugs and
revolver at the scene. He admitted not telling police at the scene that all of the contraband
items were his. He also admitted not coming forward any time prior to trial to exonerate
Marr. Finally, he admitted that his prior plea and his immunity gave him the ability to say
anything he wanted to at Marr’s trial.
{¶ 10} On re-direct examination, Eades reiterated that he pled guilty to the weapon
charge in exchange for an agreement that no drug charges would be pursued against
him. He stated that he was taking responsibility for the drugs because they were his. He
also insisted that his testimony was true. On re-cross-examination, Eades acknowledged
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that he had purchased the methamphetamine the day of the traffic stop and that he had
been with Marr “most of the day.” (Id. at 247.)
{¶ 11} Based on the evidence presented, Marr was found guilty of the charges set
forth above. The trial court imposed an aggregate three-year prison sentence. This appeal
followed.
{¶ 12} In his first assignment of error, Marr contends his convictions for the drug
offenses (other than the paraphernalia charge to which he pled guilty) and the weapon-
related offenses were against the manifest weight of the evidence. The only issue Marr
raises is whether the weight of the evidence supported a finding that he knowingly
possessed the drugs and the black revolver inside the truck. Because Marr did not have
actual possession of those items, he recognizes that the issue is whether he
constructively possessed them. Marr’s entire substantive argument is as follows:
* * * [T]he view of the inside of the car was obstructed so Officer Perry
could not observe any possible furtive movements during the stop. The
opaque piece of plastic in the rear passenger side window obstructed
Officer Perry from seeing Mr. Eades from the mid-back down, including not
being able to see his hands. (Tr. at pp. 182-188). Mr. Marr denied
knowledge of the methamphetamine, handgun, and heroin capsules. (Tr. at
p. 159). Mr. Marr did acknowledge he knew a pipe was inside the vehicle,
but all other contraband was found on top of the pipe and could have been
placed on top of the pipe unbeknownst to Mr. Marr. (See Tr. at pp. 153-
159). The drugs and gun were covered so as Mr. Marr could not see the
items in the center console. (Tr. at 235). Moreover, Officer Perry searched
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Mr. Marr and found no drugs or drug paraphernalia on his person. (Tr. at p.
180). Finally, Mr. Eades was sitting in the front passenger seat and had
easy access to the center console where the items were found. (Tr. at p.
181). Mr. Eades testified that the gun and methamphetamine were his and
Mr. Marr did not have control over the items. (Tr. at p. 232).
Therefore, the State failed to establish Mr. Marr possessed, carried,
or had the gun, methamphetamine, or heroin because Officer Perry did not
observe furtive movements, the State failed to prove Mr. Marr knew the
items were in the car, and Mr. Marr’s mere proximity to the items hidden in
the center compartment is insufficient to establish constructive possession.
The State failed to prove the possession necessary for Counts I, II, III, IV,
V, and VI.
(Appellant’s brief at 9-10.)
{¶ 13} 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
in the exceptional case in which the evidence weighs heavily against the conviction.”
State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 14} With the foregoing standards in mind, we conclude that Marr’s convictions
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were not against the manifest weight of the evidence. “A person has constructive
possession of something if he is aware of its presence and is able to exercise dominion
and control over it, ‘even though [it] may not be within his immediate physical
possession.’ ” State v. Zaragoza, 2d Dist. Montgomery No. 27290, 2017-Ohio-7944, ¶ 32,
quoting State v. Hankerson, 70 Ohio St. 2d 87, 434 N.E.2d 1362 (1982), syllabus.
Constructive possession “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 is not guilty of an offense unless his
conduct involves a voluntary act. R.C. 2901.21(A)(1). “Possession is a voluntary act if the
possessor knowingly procured or received the thing possessed, or was aware of the
possessor's control of the thing possessed for a sufficient time to have ended
possession.” R.C. 2901.21(F)(1). “So constructive possession requires that the person
was conscious of the presence of the object.” State v. Levell, 2d Dist. Montgomery No.
27489, 2017-Ohio-9055, ¶ 17. The presence of drugs or other contraband in close
proximity to a defendant may establish constructive possession where the defendant is
aware of the item’s presence. State v. Townsend, 2d Dist. Montgomery No. 18670, 2001
WL 959186, *3 (Aug. 24, 2001); see also State v. Fry, 4th Dist. Jackson No. 03CA26,
2004-Ohio-5747, ¶ 41 (recognizing that “when one is the driver of a car in which drugs
are within easy access of the driver, constructive possession may be established”
because possession of the car is a strong indication of control over the car’s contents);
Criss v. City of Kent, 867 F.2d 259, 263 (6th Cir.1988) (“Ohio law is clear that a suspect
can be in ‘constructive possession’ of * * * property without having actual physical
possession of the property if it is located within premises under the suspect’s control and
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he was conscious of its presence.”).
{¶ 15} Here Marr was driving his own truck that contained a handgun, drugs, and
drug paraphernalia concealed under a cup holder right next to his seat. The cup holder
was slightly raised up toward his side of the vehicle. When Perry asked whether the truck
contained anything illegal, Marr responded, “As far [as] I’m concerned, no.” Perry then
requested permission to search the truck, and Marr responded, “As long as I don’t get in
trouble for anything.” Even if the handgun and drugs belonged to Eades, these equivocal
answers supported a reasonable inference that Marr knew the contraband was inside the
vehicle. In addition, Marr subsequently admitted that the drug paraphernalia found
beneath the other items belonged to him. Eades also testified that the drugs were on the
passenger-side floor board and were not concealed while the two men drove around that
evening prior to the stop. On its face, the foregoing evidence was enough for the jury to
conclude that Marr constructively possessed the handgun and the drugs discovered
under the cup holder in his truck. The State’s evidence supported a finding that Marr
owned the truck, that he had dominion and control over the truck’s contents, and that he
was aware of the contraband’s presence.
{¶ 16} Although Eades testified that the handgun and drugs belonged to him, the
jury was not required to believe this testimony, particularly in light of the immunity from
further prosecution that Eades had received by virtue of his plea bargain. But even if we
accept Eades’ testimony about his ownership of the weapon and the drugs, the jury
reasonably still could have found Marr guilty. The State was not required to prove Marr’s
ownership of the contraband. State v. Adams, 2d Dist. Clark No. 2018-CA-80, 2019-Ohio-
1140, ¶ 21. It was required to prove only his constructive possession of the items as
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evidenced by his knowing dominion and control over them. As set forth above, Marr’s
knowledge of the presence of the items can be inferred from his equivocal answers to the
officer’s questions prior to the search and other evidence. Even if we accept Eades’
version of events, Eades placed the handgun and the drugs under the cup holder in
response to officer Perry attempting to initiate a traffic stop. Although Marr was driving
the truck, he was sitting next to Eades at the time. Under these circumstances, the jury
reasonably could have inferred that Marr would have seen Eades conceal the contraband.
We note too that Eades and Marr were capable of simultaneously possessing the
contraband under the cup holder. State v. Cook, 10th Dist. Franklin No. 19AP-353, 2020-
Ohio-2844, ¶ 39, citing State v. Sherfey, 5th Dist. Fairfield No. 13-CA-37, 2014-Ohio-
1717, ¶ 34. Alternatively, Eades could have been convicted solely based on his actual
possession of the firearm before placing it under the cup holder. Therefore, the fact that
Eades pled guilty to possessing the firearm did not preclude a finding that Marr
constructively possessed it.
{¶ 17} If we accept Eades’ version of events—which the jury was not required to
do—the only potential issue we see is whether Marr knowingly had dominion and control
over the contraband for a sufficient amount of time to have been able to end his
possession, as required by R.C. 2901.21(F)(1) to make his constructive possession
voluntary. If we assume, arguendo, that Marr had no knowledge of the presence of the
handgun or the drugs until Eades placed them under the cup holder just before officer
Perry stopped the truck, an assumption the record does not necessarily compel, Marr
could argue that his possession of the contraband was too brief to qualify as voluntary
under the statute. But Marr makes no argument that his possession of the firearm and
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drugs was knowing but involuntary. In his opening brief, he asserts that he did not see
Eades place the handgun and the drugs under the cup holder and, therefore, was
unaware of their presence. In response to the State’s argument that Marr was aware,
Marr argues in his reply brief that he was not able to exercise dominion and control over
the contraband. Based on the reasoning set forth above, we believe the jury reasonably
could have found that Marr was aware of the handgun and drugs concealed under the
cup holder and that he was able to exercise dominion and control over the items.
Accordingly, we find his argument to be unpersuasive. This is not an exceptional case in
which the evidence weighs heavily against Marr’s conviction. The first assignment of error
is overruled.
{¶ 18} In his second assignment of error, Marr contends prosecutorial misconduct
deprived him of a fair trial. Specifically, he claims the prosecutor elicited testimony about
him previously being in prison and then reminded the jury of that fact during closing
arguments. Marr asserts that these actions by the prosecutor violated Evid.R. 404(B)’s
prohibition against prior-bad-acts evidence. We note, however, that Marr did not object at
trial to the conduct about which he now complains. Therefore, we are limited to plain-error
review.
{¶ 19} The initial reference at issue occurred during cross-examination of Eades.
The prosecutor asked Eades how he met Marr. Eades responded that they had met “in
Madison Correctional Facility the first time.” (Trial Tr. Vol. II at 238-239.) Marr cites nothing
to suggest that the prosecutor knew Eades would give this response, and the question
was not improper. Eades testified on direct examination that he and Marr were friends,
and the prosecutor was entitled to ask how they had met. After Eades mentioned the
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“Madison Correctional Facility,” the prosecutor follow up by asking, “So that’s in prison?”
Even if it were improper for the prosecutor to seek clarification that the Madison
Correctional Facility was a prison, the jury already had been made aware of Eades’ prior
convictions for a felony offense of violence and felony drug abuse. That being so, the fact
that he had served prison time likely was not particularly surprising.
{¶ 20} Thereafter, in his closing argument, the prosecutor suggested that it was
implausible for Marr not to have known about the firearm and drugs in his truck. The
prosecutor began that portion of his argument by saying: “Let me ask you this. They were
driving around, per Eades, for a couple of hours that night. Are you telling me that this
man who is his friend that he met in the joint doesn’t know anything that’s on him at all?
(Id. at 266.) The prosecutor proceeded to cite various pieces of circumstantial evidence
to establish that Marr knew about the presence of the handgun and drugs while the two
men were riding around. (Id. at 266-269.) The prosecutor’s single reference in closing
argument to Marr and Eades meeting in “the joint” was supported by Eades’ trial
testimony. Even if the prosecutor should not have made the statement, we see no basis
for a new trial.
{¶ 21} On plain-error review, Marr is required to establish both the existence of
misconduct and that but for the misconduct the outcome at trial clearly would have been
otherwise. State v. Kuck, 2016-Ohio-8512, 79 N.E.3d 1164, ¶ 28 (2d Dist.). Here the
record fails to persuade us that the outcome below clearly would have been otherwise
but for the prosecutor eliciting testimony on cross-examination about Marr and Eades
meeting in prison and then referencing the two men meeting in “the joint” during closing
arguments. The second assignment of error is overruled.
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{¶ 22} The judgment of the Montgomery County Common Pleas Court is affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
Sean Brinkman
Hon. Timothy N. O’Connell