State v. Shipman , 2012 Ohio 2877 ( 2012 )

[Cite as State v. Shipman, 2012-Ohio-2877.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Patricia A. Delaney, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2011CA00202
:
:
JUSTIN SHIPMAN : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2011CR0756
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 25, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JACOB T. WILL
Prosecuting Attorney 116 Cleveland Avenue, N.W.
Stark County, Ohio 808 Courtyard Centre
Canton, Ohio 44702
BY: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Shipman, 2012-Ohio-2877.]
Edwards, J.
{¶1} Appellant, Justin Shipman, appeals a judgment of the Stark County
Common Pleas Court convicting him of possession of cocaine as a third degree felony
(R.C. 2925.11(A), R.C. 2925.11(C)(4)(c)) and possession of marijuana as a minor
misdemeanor (R.C. 2925.11(A), R.C. 2925.11(C)(3)(a)) and sentencing him to three
years incarceration. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} During the evening hours of May 25, 2011, Canton police officer and
canine handler Christopher Heslop was on routine patrol in his cruiser with his canine
partner, Zeke. While patrolling a high-crime, high-drug area of Canton, he observed a
BMW blow by a stop sign and race by his cruiser. He activated his lights and siren and
pursued the vehicle. The vehicle stopped in a parking lot at an apartment complex and
the occupants fled on foot.
{¶3} Heslop checked the license plates of the BMW and discovered that they
were dealer’s plates. He approached the car with his dog so the dog could pick up a
scent and track the occupants. Heslop drew his gun, which had a tactical flashlight
attached to the barrel, allowing the officer to hold it in one hand and his dog’s leash in
the other hand. Zeke began tracking away from the car and toward the apartment
complex.
{¶4} While moving through the complex, Heslop noticed appellant standing by
a parked car, dressed only in a pair of jeans. Concerned for his safety, because he
could not see appellant’s hands, he ordered appellant to walk slowly toward him with his
Stark County App. Case No. 2011CA00202 3
hands visible. Appellant moved to the front of the vehicle while Heslop trained his
flashlight on appellant.
{¶5} Heslop paid close attention to appellant’s hands in case he had a weapon.
Heslop saw appellant remove something from his front pants pocket and drop it on the
blacktop. The item attracted Heslop’s attention as it appeared to be a baggie with a
large object inside. Heslop ordered appellant to the ground. He called for backup
because he could not handcuff appellant while handling Zeke, who became aggressive
when anyone got near Heslop.
{¶6} Officer Mark Diels arrived on the scene in response to Heslop’s call for
backup. He handcuffed appellant, searched appellant incident to arrest, and found a
baggie containing a small amount of marijuana in his pants pocket. After appellant was
secured, Heslop went to find what appellant had dropped earlier. Heslop found a clear
plastic baggie containing a large rock of crack cocaine, weighing just under seven
grams. The baggie was found where Heslop saw appellant drop something and was
laying by appellant’s legs after Heslop ordered him to the ground. The baggie of crack
was the only item on the ground in the area.
{¶7} Appellant was indicted by the Stark County Grand Jury with one count of
cocaine possession and one count of marijuana possession. The case proceeded to a
jury trial in the Stark County Common Pleas Court.
{¶8} On the second day of trial, after jury selection but prior to opening
statements, appellant entered a plea of guilty to the charge of possession of marijuana.
The case proceeded to trial on the possession of cocaine charge.
Stark County App. Case No. 2011CA00202 4
{¶9} At trial, appellant’s girlfriend Starla Mitchell testified that appellant was
sleeping on her couch when she saw a police cruiser go by. He left her apartment and
stopped outside to talk to her son, Colin, who was seated in the passenger seat of a car
parked in the parking lot. She watched the encounter between Heslop and appellant
and testified that appellant did not drop anything from his pocket to the blacktop. Colin
Mitchell also testified that appellant did not drop anything during the encounter with
Heslop.
{¶10} Appellant was convicted on both charges. He was sentenced to a
mandatory term of three years incarceration for possession of cocaine and fined $100
on the minor misdemeanor marijuana charge. He assigns two errors on appeal:
{¶11} “I. THE APPELLANT’S CONVICTION FOR ONE COUNT OF
POSSESSION OF COCAINE IN VIOLATION OF R.C. 2925.11 WAS AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶12} “II. THE APPELLANT IS ENTITLED TO A NEW SENTENCING HEARING
BASED ON RECENT CHANGES IN THE LAW REGARDING SENTENCING AND THE
DEGREE OF THE CHARGE.”
I
{¶13} Appellant argues that the judgment convicting him of possession of
cocaine is against the manifest weight and sufficiency of the evidence.
{¶14} 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
Stark County App. Case No. 2011CA00202 5
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).
{¶15} 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).
{¶16} Possession of cocaine is defined by R.C. 2925.11(A), which states, “No
person shall knowingly obtain, possess, or use a controlled substance.”
{¶17} Appellant concedes that the substance in the baggie was cocaine.
However, he argues that the evidence did not demonstrate that he possessed the
baggie of crack cocaine.
{¶18} Possession may be actual or constructive. State v. Haynes, 25 Ohio St.2d
264, 267 N.E.2d 787 (1971); State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362,
syllabus (1982). To establish constructive possession, 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. Trembly, 137 Ohio App.3d 134, 738
N.E.2d 93(2000). Circumstantial evidence that the defendant was located in very close
proximity to readily usable drugs may show constructive possession. State v. Morales,
Stark County App. Case No. 2011CA00202 6
5th Dist. No. 2004 CA 68, 2005-Ohio-4714 at ¶ 50; State v. Moses, 5th Dist. No.
2003CA00384, 2004-Ohio-4943 at ¶ 9.
{¶19} The testimony of Heslop, if believed by the jury, is sufficient to support a
finding that appellant possessed the crack cocaine. Heslop testified that he saw
appellant remove an item from his pants pocket and drop it to the ground. Appellant
was immediately ordered to the ground. The only item Heslop found in the area where
appellant dropped the item was the baggie of crack cocaine. Heslop had his flashlight
trained on appellant and was watching his hands closely because he was concerned
about whether appellant had a weapon. Heslop’s testimony was sufficient, if believed
by the jury, to support a finding that appellant possessed the baggie of cocaine.
{¶20} Further, the judgment is not against the manifest weight of the evidence.
The jury did not lose its way in believing the testimony of Heslop over that of appellant’s
girlfriend and her son. Heslop testified that in addition to his flashlight, there were
streetlights and porch lights in the area, and he saw appellant take the baggie out of his
pocket and drop it straight to the ground. The baggie was located near appellant’s legs
after Heslop ordered appellant to the ground while he awaited backup and was the only
item in the area when Heslop retrieved it after Diels handcuffed appellant.
{¶21} The first assignment of error is overruled.
II
{¶22} Appellant argues that he should be resentenced under the new felony
sentencing provisions of House Bill 86. He argues that under the new law, he would
have been guilty of a fourth degree felony, rather than a third degree felony, and would
be subject to a community control sanction rather than a prison term.
Stark County App. Case No. 2011CA00202 7
{¶23} The effective date of House Bill 86 was September 30, 2011. Appellant
was sentenced on August 31, 2011, pursuant to the law in effect on the date on which
he was sentenced.
{¶24} Section 3 of House Bill 86 provides:
{¶25} “SECTION 3. The amendments to sections 2925.01, 2925.03, 2925.05,
and 2925.11 of the Revised Code, and to division (W) of section 2929.01 of the Revised
Code, that are made in this act apply to a person who commits an offense involving
marihuana, cocaine, or hashish on or after the effective date of this act and to a person
to whom division (B) of section 1.58 of the Revised Code makes the amendments
applicable.
{¶26} “The provisions of sections 2925.01, 2925.03, 2925.05, and 2925.11 of
the Revised code, and of division (W) of section 2929.01 of the Revised Code, in
existence prior to the effective date of this act shall apply to a person upon whom a
court imposed sentence prior to the effective date of this act for an offense involving
marihuana, cocaine, or hashish. The amendments to sections 2925.01, 2925.03,
2925.05, and 2925.11 of the Revised Code, and to division (W) of section 2929.01 of
the Revised Code, that are made in this act do not apply to a person upon whom a court
imposed sentence prior to the effective date of this act for an offense involving
marihuana, cocaine, or hashish.”
{¶27} Based on this language, it is clear that the bill was not meant to apply
retroactively, and the trial court correctly sentenced appellant according to the law in
effect at the time he was sentenced. While appellant argues that equity and fairness
demand that he be resentenced under the more lenient law, it is clear that the intent of
Stark County App. Case No. 2011CA00202 8
the legislature was that all offenders sentenced prior to September 30, 2011, be
sentenced under the old law.
{¶28} The second assignment of error is overruled.
{¶29} The judgment of the Stark County Common Pleas Court is affirmed.
By: Edwards, J.
Delaney, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d0319
[Cite as State v. Shipman, 2012-Ohio-2877.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JUSTIN SHIPMAN :
:
Defendant-Appellant : CASE NO. 2011CA00202
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellant.
_________________________________
_________________________________
_________________________________
JUDGES