State v. Cauthon , 2019 Ohio 1809 ( 2019 )

[Cite as State v. Cauthon, 2019-Ohio-1809.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 18-CA-41
TIFFANI CAUTHON
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Fairfield Court of
Common Pleas, Case No. 2017 CR
00074
JUDGMENT: Affirmed In Part and Reversed and
Remanded In Part
DATE OF JUDGMENT ENTRY: May 9, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. KYLE WITT JAMES A. ANZELMO
Fairfield County Prosecuting Attorney 446 Howland Drive
Gahanna, Ohio 43230
BRIAN T. WALTZ
Assistant Prosecuting Attorney
239 West Main Street – Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 18-CA-41 2
Hoffman, P.J.
{¶1} Appellant Tiffani Cauthon appeals the judgment entered by the Fairfield
County Common Pleas Court convicting her of aggravated possession of drugs (R.C.
2925.11(A),(C)(1)(a)), possession of marijuana (R.C. 2925.11(A)(C)(3)(a)), operating a
vehicle under the influence of alcohol or a drug of abuse (R.C. 4511.19(A)(1)(a)),
operating a motor vehicle without a license (R.C. 45.1012(A)(1)), and violation of lanes of
travel on roadways (R.C. 4511.33(A), (B)), and sentencing her to five years community
control. Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} At approximately 2:20 a.m. on September 8, 2016, Sgt. Timothy Bullock of
the Ohio State Highway Patrol observed a vehicle driven by Appellant speeding. He
further observed her weaving in her lane, and hitting her brakes to avoid striking a
Pickerington police car from the rear.
{¶3} Sgt. Bullock stopped Appellant’s car. Upon approaching the rear bumper
of the vehicle, he could smell an overwhelming odor of burnt marijuana coming from the
vehicle. Appellant was the sole occupant. Upon requesting her license, Appellant
informed the officer she did not have a valid driver’s license.
{¶4} Sgt. Bullock asked Appellant to step out of the vehicle. He could smell
marijuana on her person. She reported there was no marijuana in the vehicle, and stated
she was out at 2:20 in the morning to buy French fries.
{¶5} After placing Appellant in the rear of his cruiser, Sgt. Bullock searched the
car. In the center console storage area by the driver’s seat, he found three items stacked
on top of each other and on top of the other items in the console: a plastic baggie
containing marijuana, a work photo identification belonging to Appellant, and another
Fairfield County, Case No. 18-CA-41 3
plastic baggie which appeared to the officer to contain powder cocaine. However, further
examination of the baggie revealed the baggie contained pills, which later tested to be
methamphetamine. Additionally, in the cup holder in the center console, the officer found
a cup containing soda. Floating in the soda the officer found a partially consumed
marijuana cigarette, which smelled like burnt marijuana.
{¶6} Sgt. Bullock asked Appellant to perform field sobriety tests. She exhibited
no clues on the horizontal gaze nystagmus test, which is designed primarily to determine
if a person is under the influence of alcohol. He noted her eyes failed to converge, which
indicates the usage of marijuana. On the walk and turn test, Appellant exhibited four
clues. On the one-legged stand test, she exhibited one clue, and on the alphabet
recitation test, she skipped over four letters.
{¶7} Appellant refused to submit to a urine test. She indicated to the officer she
had to go home immediately, as she needed to be at work at 8:30 the same morning.
{¶8} Appellant was charged with aggravated possession of drugs, possession of
marijuana, operating a motor vehicle under the influence of alcohol or a drug of abuse
(OMVI), operating a motor vehicle without a license, and violation of lanes of travel on
roadways. Following jury trial, the jury found her guilty of aggravated possession of drugs
and OMVI, and the court found Appellant guilty of the remaining charges. She was
sentenced to five years community control.
{¶9} It is from the August 7, 2018 judgment of conviction and sentence Appellant
prosecutes this appeal, assigning as error:
Fairfield County, Case No. 18-CA-41 4
I. TIFFANI CAUTHON’S CONVICTIONS FOR AGGRAVATED
DRUG POSSESSION AND OPERATING A VEHICLE UNDER THE
INFLUENCE OF ALCOHOL OR DRUGS ARE BASED ON INSUFFICIENT
EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO
CONSTITUTION.
II. TIFFANI CAUTHON’S CONVICTIONS FOR OPERATING A
VEHICLE UNDER THE INFLUENCE OF DRUGS OR ALCOHOL AND
AGGRAVATED DRUG POSSESSION ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I
OF THE OHIO CONSTITUTION.
III. THE TRIAL COURT ERRED WHEN IT SENTENCED
CAUTHON, IN VIOLATION OF HER DUE PROCESS RIGHTS UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF
THE OHIO CONSTITUTION.
I., II.
{¶10} In her first and second assignments of error, Appellant argues her
convictions for OMVI and aggravated possession of drugs are against the manifest weight
and sufficiency of the evidence.
Fairfield County, Case No. 18-CA-41 5
{¶11} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶12} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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,
paragraph two of the syllabus (1991).
{¶13} Appellant was convicted of aggravated possession of drugs in violation of
R.C. 2925.11(A), which provides, “No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.” R.C. 2925.01(K) states:
“Possess” or “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.
{¶14} Possession may be actual or constructive. State v. Butler, 42 Ohio St. 3d
174, 176, 538 N.E.2d 98(1989). To establish constructive possession, the evidence must
Fairfield County, Case No. 18-CA-41 6
prove 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. Trembly, 137 Ohio App. 3d 134, 738
N.E.2d 93 (8th Dist. Cuyahoga 2000). Circumstantial evidence that the defendant was
located in very close proximity to the contraband may show constructive possession.
State v. Butler, supra; State v. Morales, 5th Dist. Licking No. 2004 CA 68, 2005-Ohio-
4714, ¶ 50. Ownership of the contraband need not be established in order to find
constructive possession. State v. Smith, 9th Dist. Summit No. 20885, 2002-Ohio-3034, ¶
13. Furthermore, possession may be individual or joint. Wolery, supra, 46 Ohio St.2d at
332, 348 N.E.2d 351. Multiple individuals may constructively possess a particular item
simultaneously. State v. Pitts, 4th Dist. Scioto No. 99 CA 2675, 2000-Ohio-1986.
{¶15} Appellant argues the evidence is insufficient to demonstrate she possessed
the methamphetamine found in the center console, and the judgment finding she
possessed the methamphetamine is against the weight of the evidence. She argues the
evidence supports a finding she was using marijuana rather than methamphetamine.
She argues she was not the only person with access to the car, as the car was rented in
her friend’s name, and they shared usage of the car.
{¶16} Appellant relies on State v. Kingsland, 177 Ohio App. 3d 655, 2008-Ohio-
4148 (4th Dist. Adams). In Kingsland, police found chemicals used to make
methamphetamine in the bed of a pickup truck, in which the defendant was a passenger,
during a traffic stop. The chemicals were partially concealed and the odor of the
chemicals was not readily apparent. The Court of Appeals for the Fourth District found
the evidence insufficient to demonstrate the defendant “should have or could have known
Fairfield County, Case No. 18-CA-41 7
that he was in close proximity to illegal chemicals based upon their appearance and
location in the truck.” Id. at ¶20. The court reversed the defendant’s conviction for
possession of chemicals for the manufacture of drugs as against the manifest weight and
sufficiency of the evidence. Id. at ¶¶20-21.
{¶17} We find the instant case distinguishable from Kingsland. Appellant was
driving the car and was its sole occupant. She admitted she had been using the car
during the day, and she shared the car with her friend. Appellant told the officer the items
in the back of the car were items from her storage unit. The drugs were found in the
center console of the vehicle, directly next to the driver’s seat where Appellant had been
seated. On top of other items in the console, the officer found three items stacked directly
on top of each other: marijuana which Appellant eventually admitted she knew was in the
car, a work identification card with Appellant’s picture on it, and the baggie containing
methamphetamine. From this evidence, the jury could find Appellant constructively
possessed the methamphetamine. We find the judgment finding she possessed the
drugs is not against the manifest weight of the evidence.
{¶18} Appellant was also convicted of OMVI in violation of R.C. 4511.19(A)(1)(a),
which provides:
(A)(1) No person shall operate any vehicle, streetcar, or trackless
trolley within this state, if, at the time of the operation, any of the following
apply:
(a) The person is under the influence of alcohol, a drug of abuse, or
a combination of them.
Fairfield County, Case No. 18-CA-41 8
{¶19} The officer observed Appellant following a Pickerington police cruiser too
closely, speeding, and weaving. When he stopped Appellant’s vehicle, the odor of burnt
marijuana was apparent from the rear bumper of the car. After removing Appellant from
the vehicle, he could smell burnt marijuana on her person. Sgt. Bullock found a partially-
smoked marijuana cigarette, still smelling of burnt marijuana, floating in a soda in the cup
holder of the vehicle. Appellant admitted using marijuana. The officer testified Appellant
failed several field sobriety tests, and her eyes failed to converge when he administered
the convergence test, which is indicative of marijuana use. She further refused a drug
test. From this evidence, the jury could conclude Appellant was operating her vehicle
under the influence of marijuana, and the judgment is supported by sufficient evidence.
{¶20} Appellant offers several explanations for her poor performance on field
sobriety tests. She acknowledges she admitted to using marijuana and violated traffic
laws while driving, but argues the totality of the evidence negates a finding she was
impaired. She argues it is reasonable to conclude when asked to recite the alphabet from
D through X, she misunderstood and therefore recited the alphabet from D through S,
and did not skip from R to X as indicated by Sgt. Bullock. She argues she could not
perform the walk and turn test because she was cold and shivering, and her refusal to
take the urine test was not due to consciousness of guilt, but because she was under a
time constraint.
{¶21} The jury heard the testimony of Sgt. Bullock and watched the video of the
traffic stop, which included the field sobriety tests. From the testimony at trial and the
video, we find the jury did not lose its way in finding Appellant guilty of OMVI.
{¶22} The first and second assignments of error are overruled.
Fairfield County, Case No. 18-CA-41 9
III.
{¶23} In her third assignment of error, Appellant argues the court erred in
sentencing her to a different sentence than the sentence pronounced from the bench.1
{¶24} In its judgment entry of sentencing, the court indicated if Appellant violated
her community control on the possession of drugs charge, she could be incarcerated for
six months to be served at the Ohio Reformatory for Women in Marysville, Ohio.
However, during the sentencing hearing, the court stated if she violated community
control, she could be sentenced to a six month term of incarceration at the Fairfield
County Jail. Sent. Tr. 15.
{¶25} Crim.R. 43(A) provides the defendant shall be present at every stage of the
trial, including at the imposition of sentence. Because the defendant's presence is
required when the court imposes sentence, the trial court errs when its judgment entry of
sentence differs from the sentence announced at the sentencing hearing in the
defendant's presence. State v. Kase, 187 Ohio App. 3d 590, 2010-Ohio-2688, 932 N.E.2d
990 (7th Dist. Belmont), ¶30.
{¶26} A difference between the sentence pronounced from the bench and the
judgment of sentencing at times requires a remand for resentencing. See, e.g, Kase,
supra (remanded for resentencing where court imposed a life sentence from the bench
but life without possibility parole in entry); State v. Alvelo, 8th Dist. Cuyahoga No. 104422,
2017-Ohio-742, 85 N.E.3d 1032 (resentencing required where court imposed sentences
in judgment entry on counts it failed to orally pronounce sentence on during hearing);
State v. West, 9th Dist. Summit No. 27485, 2015-Ohio-2936 (resentencing required
1 The State failed to respond to this assignment of error in its brief.
Fairfield County, Case No. 18-CA-41 10
where sentencing entry ordered defendant to serve 30 days in jail on drug paraphernalia
count after the court failed to address that count in open court).
{¶27} However, where it appears the discrepancy between the sentence
pronounced in court and the entry is merely a scrivener’s error, the court can correct the
entry to reflect the sentence pronounced from the bench by a nunc pro tunc judgment.
See, e.g., Alvelo, supra (court should issue nunc pro tunc entry to correct amount of
restitution); State v. Vaughn, 8th Dist. Cuyahoga No. 103330, 2016-Ohio-3320 (trial court
ordered to issue a nunc pro tunc order to correct the sentencing entry to reflect the
sentence imposed at the sentencing hearing regarding firearm specifications).
{¶28} In the instant case, the record is not clear if the trial court intended any
sentence imposed for violation of community control to be served in the Ohio Reformatory
for Women in Marysville, or in the Fairfield County Jail. If the trial court’s intention is a
sentence for violation of community control be served in the Fairfield County Jail, the trial
court is ordered to issue a nunc pro tunc order to conform the sentencing entry to the oral
announcement of sentence. If the trial court’s intention is a sentence for violation of
community control be served in the Ohio Reformatory for Women, Appellant must be
resentenced.
{¶29} The third assignment of error is sustained.
Fairfield County, Case No. 18-CA-41 11
{¶30} The judgment of the Fairfield County Common Pleas Court is reversed only
as to the imposition of sentence in the event of a violation of community control. The
judgment is affirmed in all other respects. This case is remanded for further proceedings
in accordance with this opinion and the law.
By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur