State v. Smith , 2018 Ohio 2366 ( 2018 )

[Cite as State v. Smith, 2018-Ohio-2366.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2017-0044
IVAN J. SMITH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2016-0317
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 18, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ERIC J. ALLEN
PROSECUTING ATTORNEY THE LAW OFFICE of ERIC J. ALLEN, LTD
GERALD V. ANDERSON II 4605 Morse Road
ASSISTANT PROSECUTOR Suite 201
27 North Fifth Street, P.O. Box 189 Gahanna, Ohio 43230
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0044 2
Wise, P. J.
{¶1} Defendant-appellant Ivan J. Smith appeals his convictions entered in the
Muskingum County Court of Common Pleas following a jury trial.
{¶2} Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} On July 13, 2016, Muskingum County Sheriff’s dispatch received a
complaint about the odor of marijuana coming from the residence located at 128 Hamline
Ave., Zanesville, Ohio. The complaint also stated that the occupants at the residence
were trafficking in drugs.
{¶5} Colleena Johnson ("Colleena") and Appellant lived at 128 Hamline Ave.,
130 Hamline Ave. was vacant at the time. (Trial, Vol. I, p. 157, 159; Vol. II, p. 455). Their
residence is a duplex with 130 Hamline Ave., wherein 128 is on the south side and 130
is on the north side. (T. at 157).
{¶6} In response to the complaint, officers approached the residence to conduct
a “knock and talk”. (T. at 152-53). Officers noticed the odor or raw marijuana, which
became stronger when Colleena came out after the officers knocked. (T. at 155-56).
Colleena refused to give consent for a search of the residence. Officers secured the
residence while Detective Matt Wilhite ("Det. Wilhite") left to procure a search warrant. (T.
at 156). Colleena, who was not permitted to re-enter the residence without being
accompanied by an officer, left on foot. It took a little over an hour for Det. Wilhite to return
with a signed search warrant.
Muskingum County, Case No. CT2017-0044 3
{¶7} Additionally, officers received consent from Dan Reinstetle, the owner of the
duplex, to search the vacant 130 Hamline Ave. residence to confirm the odor of marijuana
was not coming from it. (T. at 159). Officers also found nine (9) marijuana plants outside,
on the south side (128 side) of the duplex, in pots that resembled pots that were later
discovered inside 128 Hamline Ave. (T. at 167). The marijuana plants outside had labels
on them to identify their strand. (T. at 169).
{¶8} Inside 128 Hamline Ave., officers found Christmas tags that read "To Ivan,
From Col", mason jars with labelling, and Ziploc vacuum sealed bags with handwriting
that was similar to the handwriting on the labels on the marijuana plants outside. (T. at
170-71, 173). There was also marijuana residue on the bottom of the mason jars and the
labels for other strands of marijuana. (T. at 171-72).
{¶9} Officers also found five (5) butane cans inside the residence, which Det.
Wilhite testified were frequently used to process marijuana to manufacture hashish. (T.
at 172). Hashish was also found. (T. at 467-69).
{¶10} During the search, officers also found duct tape that matched duct tape on
the marijuana plants outside, as well as duct tape that would later be found in the
basement and at a storage unit. (T. at 173-74).
{¶11} A book named Cannabis Indica was found next to a cedar chest in a room
upstairs. (T. at 176). Inside that cedar chest were four (4) more mason jars with labels,
vacuum sealed bags, and a plastic tote that had Appellant's fingerprint on it. (T. at 177,
392-94). There was a desk in the room that had mail and multiple documents in the name
of Appellant. (T. at 83-84, 205). Officers also found a Styrofoam cup with
methamphetamine inside of it. (T. at 180, 182, 301, 467-69).
Muskingum County, Case No. CT2017-0044 4
{¶12} In a closet, behind some clothes was a staircase that led to the attic, which
had been secured by coat hanger wire. (T. at 184). The attic can only be accessed from
128 Hamline Ave., not from 130 Hamline Ave. (T. at 166, 269-70). In the attic, eighty-four
(84) full plants, fresh, with wet and damp soil, were found, as well as a large, plastic,
industrial grinder with ground-up marijuana inside, more mason jars, a vacuum sealer,
and other dried marijuana were found. (T. at 185, 188-89, 317-18). Appellant's fingerprints
were on the grinder. (T. at 189, 392-94). There was no lighting in the attic and the
temperature was above 100 degrees. (T. at 185, 273).
{¶13} Det. Wilhite testified about his knowledge of marijuana and that marijuana
plants cannot grow in a space of that temperature and with no light, concluding that the
plants had to have recently been placed there. (T. at 185-86, 188, 273). Colleena would
not have had time to move the plants to the attic. (T. at 276).
{¶14} In the basement officers found three (3) constructed hydroponic grow rooms
wrapped in heavy black plastic with reflective plastic on the inside, grow lights, hydroponic
stems, filters, all used to grow marijuana. (T. at 192). There were also hydroponic clay
balls and bamboo sticks, which matched hydroponic clay balls and bamboo sticks that
were found with the outside marijuana plants. (T. at 194). There was a box for grow lights
with the name Howard Bailey on it, who previously worked at Iroc's Hair Design Studio
("Iroc's"), which is the barbershop business that Appellant owns, located at 125 State
Street. (T. at 196, 253). There was blue rope and blue pulleys holding up the LED grow
lights from the ceiling. (T. at 196). Howard Bailey's fingerprint was on one of the LED grow
lights, which he testified he had previously sold to Appellant. (T. at 255, 299, 366, 369).
There was also Appellant's yellow-hooded sweatshirt, which he had been seen wearing
Muskingum County, Case No. CT2017-0044 5
around town, and the matching pants were located in his vehicle, parked outside. (T. at
197, 231). Finally, a bag of packaged (processed) marijuana was found inside the dryer.
(T. at 414).
{¶15} Appellant's Ford Explorer was parked at 128 Hamline Ave. and was also
searched. (T. at 229-31). Located in the vehicle was a blue pulley, a pair of yellow pants,
Appellant's wallet and identification, credit cards, and numerous documents and receipts,
including an electric bill for Iroc's, a Huntington Bank bill in the name of Appellant, and
another Huntington Bank bill in the name of Ivan J. Smith dba Iroc's Hair Design Studios.
(T. at 231-32, 236, 319-320).
{¶16} In the cedar chest was also a payment book/receipts for Five Star Store It
in the name of Appellant and his company Iroc's. (T. at 203-04). That storage unit was
rented in Appellant's name for Iroc's. (T. at 252-53, 409). A K9 alerted to the presence of
narcotics in the storage unit that Appellant/Iroc's was renting. (T. at 332). A search of the
storage unit revealed 2x4 framing, ventilation piping with heavy plastic stapled to it,
vacuum sealed bags with similar writing as those found at 128 Hamline, reflective plastic,
and hydroponic clay balls, all similar to those found at 128 Hamline Ave. (T. at 215-217,
221-223). There was also a hydroponic water pump system, further documents in the
name of Appellant, heavy black plastic and duct tape similar to that found in the basement
at 128 Hamline Ave., and a hair salon chair with marijuana residue on it. (T. at 223, 226).
The receipt for Indoor Gardens found in the Ford Explorer led detectives to visit Indoor
Gardens and retrieve the merchant copy which showed that Appellant purchased grow
lights and other materials using his Huntington Bank business account card. (T. at 235,
248-252, 362-363).
Muskingum County, Case No. CT2017-0044 6
{¶17} The scene was processed, evidence collected, and sent away for testing
and analysis. (T. at 254). The grinder, plastic bin, and lighting systems were processed
for fingerprints. (T. at 337-338, 346-347). Five (5) of the fingerprints came back identifying
Appellant, one fingerprint belonged to Howard Bailey. Colleena's prints were excluded
from being on the evidence. (T. at 392, 394).
{¶18} The marijuana was tested and weighed and came back with a combined
weight of 1.28 kilograms, or 1,280 grams. (T. at 439, 445-446). The hashish was tested
and weighed 13.05 grams, the methamphetamine was tested and weighed less than 0.10
grams. (T. at 467-469).
{¶19} During the search, Appellant called Detective Todd Kanavel. Appellant was
upset and asking why they were searching the house. (T. at 415). Appellant called back
asking if he needed to turn himself in, and while referring to the grow lights, stated "the
stuff isn't even turned on". (T. at 416-17).
{¶20} On October 12, 2016, Appellant was indicted as follows:
Count 1: Possession of drugs (Marijuana), in violation of R.C.
§2925.11(A), a felony of the third degree,
Count 2: Cultivation of Marijuana, in violation of R.C. §2925.04(A), a
felony of the third degree, with a forfeiture specification;
Count 3: Possession of drugs (Hashish), in violation of R.C.
§2925.11(A), a felony of the fifth degree;
Count 4: Possession of drugs (Methamphetamine), in violation of
R.C. §2925.11(A), a felony of the fifth degree;
Muskingum County, Case No. CT2017-0044 7
Count 5: Possession of criminal tools, in violation of R.C.
§2923.24(A), felony of the fifth degree;
Count 6: Money laundering, in violation of R.C. §1315.55(A), a felony
of the third degree, with a forfeiture specification.
{¶21} On January 31, 2017, Appellant filed a motion to suppress.
{¶22} On February 10, 2017, a hearing was held on Appellant’s motion to
suppress. The trial court denied the motion.
{¶23} On February 12, 2017, a jury trial commenced in this matter. One hour into
voir dire, the trial was continued due to Appellant’s wish to fire his counsel and Appellant’s
counsel moving the court to allow him to withdraw as counsel.
{¶24} On May 24, 2017, the second jury trial began, lasting three days. At trial,
the jury heard testimony from Det. Matt Wilhite, Kevin Starrett, Michael Wilson, Josh
Durst, Isaac Reed, Howard Bailey, Ashley Own, Kelly Gibson, Brittany Ward, Todd
Kanavel, K.C. Jones, Dan Reinstetle and Martin Leweis on behalf of the state of Ohio and
Jerome Viney on behalf of the defense.
{¶25} Following deliberations, the jury found Appellant guilty on Counts One, Two,
Three, Five and Six, and the forfeiture specifications.
{¶26} On June 14, 2017, a sentencing hearing was held. At said hearing, the trial
court merged Counts One and Two for purposes of sentencing and sentenced Appellant
to thirty (30) months on those counts, twelve (12) months on Count Three, twelve (12)
months on Count Five, and thirty (30) months on Count Six. Counts Two and Six were
ordered run consecutively to one another. Counts Three and Five were ordered to run
Muskingum County, Case No. CT2017-0044 8
concurrently with each other and with the sentence on Counts Two and Six, for an
aggregate prison term of sixty (60) months.
{¶27} Appellant now appeals, raising the following assignments of error on
appeal:
ASSIGNMENTS OF ERROR
{¶28} “I. IT IS STRUCTURAL ERROR TO DEPRIVE THE APPELLANT HIS
PRESUMPTION OF INNOCENCE BY ALLOWING A WITNESS TO TESTIFY
REGARDING PRIOR CONVICTIONS.
{¶29} “II. THE CONVICTION FOR THE POSSESSION CHARGES WAS NOT
SUPPORTED BY SUFFICIENT EVIDENCE.
{¶30} “III. THE CONVICTION FOR MONEY LAUNDERING WAS NOT
SUPPORTED BY THE MANFIEST [SIC] WEIGHT OF THE EVIDENCE.
{¶31} “IV. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S
MOTION FOR A JURY VIEW.”
I.
{¶32} In his first assignment of error, Appellant argues that the trial court erred in
allowing a witness to testify regarding Appellant’s prior convictions. We disagree.
{¶33} At issue is a statement made by Howard Bailey who testified that he
“worked in his [Appellant’s] shop when he was incarcerated.” (T. at 365).
{¶34} Appellant argues that Mr. Bailey’s statement diluted his presumption of
innocence.
{¶35} Upon review, we find defense counsel objected to the Mr. Bailey’s
statement, and the trial court sustained the objection and gave the jury a curative
Muskingum County, Case No. CT2017-0044 9
instruction: “You’re to disregard anything with that intention, or whatever was stated
you’re to disregard and not consider for any purpose.” (T. at 365).
{¶36} A jury is presumed to have followed the instructions, including curative
instructions, given by a trial judge. State v. Garner, 74 Ohio St. 3d 49, 59, 656 N.E.2d 623,
634 (1995); State v. Loza, 71 Ohio St. 3d 61, 75, 641 N.E.2d 1082, 1100 (1994); State v.
Ahmed, 103 Ohio St. 3d 27, 2004–Ohio–4190, 813 N.E.2d 637, ¶ 93. Curative instructions
are presumed to be an effective way to remedy errors that occur during the trial. State v.
Treesh, 90 Ohio St. 3d 460, 480, 2001–Ohio–4, 739 N.E.2d 749.
{¶37} Appellant has not pointed to any evidence in the record that the jury failed
to do so in this case. State v. James, 5th Dist. Stark No. 2016CA00144, 2017–Ohio–
7861. This statement was isolated in the trial, and we do not find that it was so prejudicial
that an impartial verdict could not be reached. Further, the statement was immediately
followed by a short, authoritative instruction to the jury to disregard the statement, which
was sufficient to remedy any possible error regarding the struck testimony.
{¶38} Further, based on the fact that the jury acquitted Appellant on one of the
charges against him, we do not find that an impartial verdict could not be reached.
{¶39} Appellant’s first assignment of error is overruled.
II.
{¶40} In his second assignment of error, Appellant argues the trial court erred in
denying his Crim.R. 29 motion for acquittal because the state failed to sufficiently prove
the element of “possession,” and the jury's verdict was against the sufficiency of the
evidence. We disagree.
{¶41} Crim.R. 29 governs motion for acquittal. Subsection (A) states the following:
Muskingum County, Case No. CT2017-0044 10
The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment of
acquittal of one or more offenses charged in the indictment, information, or
complaint, if the evidence is insufficient to sustain a conviction of such
offense or offenses. The court may not reserve ruling on a motion for
judgment of acquittal made at the close of the state's case.
{¶42} The standard to be employed by a trial court in determining a Crim.R. 29
motion is set out in State v. Bridgeman, 55 Ohio St. 2d 261, 381 N.E.2d 184 (1978),
syllabus: “Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different conclusions as
to whether each material element of a crime has been proved beyond a reasonable
doubt.”
{¶43} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991). “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.”
Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
{¶44} We note circumstantial evidence is that which can be “inferred from
reasonably and justifiably connected facts.” State v. Fairbanks, 32 Ohio St. 2d 34, 289
N.E.2d 352 (1972), paragraph five of the syllabus. “[C]ircumstantial evidence may be
more certain, satisfying and persuasive than direct evidence.” State v. Richey, 64 Ohio
Muskingum County, Case No. CT2017-0044 11
St.3d 353, 595 N.E.2d 915 (1992). It is to be given the same weight and deference as
direct evidence. Jenks, supra.
{¶45} Appellant herein was found guilty of possession of marijuana and
possession of hashish, both in violation of R.C. §2925.11 which states: “No person shall
knowingly obtain, possess, or use a controlled substance or a controlled substance
analog.” Appellant complains that the state did not prove “possession.”
{¶46} R.C. §2925.01(K) defines “possess” or “possession” as “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.”
{¶47} Possession may be actual or constructive. “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. Hankerson, 70
Ohio St. 2d 87, 434 N.E.2d 1362 (1982), syllabus. The evidence must prove that the
defendant was able to exercise dominion and control over the contraband. State v.
Wolery, 46 Ohio St. 2d 316, 332, 348 N.E.2d 351 (1976). Dominion and control may be
proven by circumstantial evidence alone. State v. Holman, 5th Dist. Stark No.
2017CA00114, 2018–Ohio–1373, ¶ 25, citing State v. Trembly, 137 Ohio App. 3d 134,
738 N.E.2d 93 (8th Dist. 2000). Circumstantial evidence that the defendant was located
in very close proximity to the contraband may show constructive possession. State v.
Barr, 86 Ohio App. 3d 227, 235, 620 N.E.2d 242, 247–248 (8th Dist. 1993); State v.
Morales, 5th Dist. Licking No. 2004 CA 68, 2005–Ohio–4714, ¶ 50; State v. Moses, 5th
Dist. Stark No. 2003CA00384, 2004–Ohio–4943,¶ 9. Ownership of the contraband need
Muskingum County, Case No. CT2017-0044 12
not be established in order to find constructive possession. State v. Smith, 9th Dist.
Summit No. 20885, 2002–Ohio–3034, ¶ 13, citing State v. Mann, 93 Ohio App. 3d 301,
308, 638 N.E.2d 585 (8th Dist.1993). Furthermore, possession may be individual or joint.
Wolery, 46 Ohio St. 2d at 332, 348 N.E.2d 351. Multiple individuals may constructively
possess a particular item of contraband simultaneously. State v. Pitts, 4th Dist. Scioto No.
99 CA 2675, 2000–Ohio–1986. The Supreme Court has held that knowledge of illegal
goods on one's property is sufficient to show constructive possession. State v.
Hankerson, 70 Ohio St. 2d 87, 91, 434 N.E.2d 1362, 1365 (1982), certiorari denied, 459
U.S. 870, 103 S. Ct. 155, 74 L. Ed. 2d 130 (1982).
{¶48} Here, the jury heard testimony as set forth above that Appellant possessed
the drugs which were found at the premises and that Appellant was living at the premises.
{¶49} Upon review, we find sufficient evidence was presented to overcome the
Crim.R. 29 challenge.
{¶50} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact, in this case, the jury. State v. Jamison, 49 Ohio St. 3d 182,
552 N.E.2d 180 (1990). The trier of fact “has the best opportunity to view the demeanor,
attitude, and credibility of each witness, something that does not translate well on the
written page.” Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 674 N.E.2d 1159 (1997).
{¶51} Upon review, we find sufficient evidence to support the conclusion that
Appellant was able to exercise dominion and control over the marijuana and hashish and
therefore was in possession of drugs, and we do not find any manifest miscarriage of
justice.
{¶52} Accordingly, Appellant's second assignment of error is overruled.
Muskingum County, Case No. CT2017-0044 13
III.
{¶53} In his third assignment of error, Appellant argues his conviction for money
laundering was not supported by the manifest weight of the evidence. We disagree.
{¶54} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine “whether in resolving conflicts in the evidence, the jury 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. Martin, 20 Ohio App. 3d 172, 175 (1st
Dist.1983). See also, State v. Thompkins, 78 Ohio St. 3d 380, 1997–Ohio–52. The
granting of a new trial “should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at 175. We note the weight to be
given to the evidence and the credibility of the witnesses are issues for the trier of fact.
State v. Jamison, 49 Ohio St. 3d 182 (1990). The trier of fact “has the best opportunity to
view the demeanor, attitude, and credibility of each witness, something that does not
translate well on the written page.” Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 1997–
Ohio–260.
{¶55} Appellant was convicted of money laundering, in violation of R.C.
§1315.55(A)(3) which states:
{¶56} “No person shall conduct or attempt to conduct a transaction with the
purpose to promote, manage, establish, carry on, or facilitate the promotion,
management, establishment, or carrying on of corrupt activity.”
{¶57} At trial, the state presented evidence that Appellant’s credit card was used
to purchase fluorescent grow lights from Indoor Gardens, and that these lights were used
Muskingum County, Case No. CT2017-0044 14
to grow marijuana. Appellant’s fingerprints were found on the light. Evidence was also
presented that Appellant’s business account was used to rent a storage unit to keep the
grow materials. Further, the materials found in the grow rooms matched the materials
found in the storage unit. These actions, taken together show that Appellant conducted
and engaged in transactions for the purpose of carrying on a corrupt activity, that being
the cultivation of marijuana and resulting possession of marijuana.
{¶58} Upon review, we find the jury did not lose its way or create a manifest
injustice in finding that Appellant’s actions constituted money laundering.
{¶59} Appellant’s third assignment of error is overruled.
IV.
{¶60} In his fourth assignment of error, Appellant argues the trial court erred in
denying his motion for a jury view. We disagree.
{¶61} R.C. §2945.16 provides in pertinent part:
When it is proper for the jurors to have a view of the place at which
a material fact occurred, the trial court may order them to be conducted in
a body, under the charge of the sheriff or other officer, to such place, which
shall be shown to them by a person designated by the court. While the jurors
are absent on such view no person other than such officer and such person
so appointed, shall speak to them on any subject connected with the trial.
The accused has the right to attend such view by the jury, but may waive
this right.
{¶62} A trial court has broad discretion in deciding whether to permit jury views,
and its decision “will not be disturbed absent an abuse of discretion.” State v. Zuern, 32
Muskingum County, Case No. CT2017-0044 15
Ohio St. 3d 56, 58, 512 N.E.2d 585 (1987). An abuse of discretion implies that the court's
attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶63} Appellant moved for a jury view of both the duplex and the storage unit.
Initially we note that counsel for Appellant advised the trial court in chambers and again
on the record that they would be unable to get in to the storage unit.
{¶64} The trial court denied the jury view of the duplex after hearing arguments
that the jury view of the duplex would only be duplicative to the numerous photographs
taken of the scene, and that the residents of the adjoining unit would not be happy with
having the jury “tromp through the place”. The state argued that a jury view would not
add anything, and that it was evidentiarily unnecessary.
{¶65} Based on the state’s arguments, we do not find that the trial court abused
its discretion in denying the request for a jury view.
{¶66} Furthermore, the denial of the jury view did not preclude Appellant from
presenting other evidence to establish that others may have had access to the attic in the
duplex. Appellant was able to offer testimony about the layout of the duplex. Appellant
was also able to present his own photographs of the inside of the duplex. Thus, the court's
denial of the jury view did not preclude Appellant from establishing facts he wished to
make known to the jury.
Muskingum County, Case No. CT2017-0044 16
{¶67} Appellant’s fourth assignment of error is overruled.
{¶68} Accordingly, the judgment of the Muskingum County Common Pleas Court
is affirmed.
By: Wise, P. J.
Hoffman, J., and
Baldwin, J., concur.
JWW/d 0608