State v. Cannada , 2012 Ohio 3460 ( 2012 )

[Cite as State v. Cannada, 2012-Ohio-3460.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97721
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTONIO C. CANNADA
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-554818
BEFORE: Cooney, J., Blackmon, A.J., and Rocco, J.
RELEASED AND JOURNALIZED: August 2, 2012
ATTORNEY FOR APPELLANT
Patrick E. Talty
20325 Center Ridge Road
Suite 512
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Denise J. Salerno
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Antonio Cannada (“Cannada”), appeals his
convictions for drug possession and possession of criminal tools. We find no merit to
the appeal and affirm.
{¶2} Cannada was charged with two counts of drug possession and one count of
possession of criminal tools. The State asserted Cannada constructively possessed heroin
and criminal tools because he was not present when police found them pursuant to a
search of his residence. At a bench trial, the parties stipulated that Cannada lived at 2149
West 105th Street, Apartment 3, in Cleveland, Ohio. Several days prior to the execution
of a search warrant, two confidential informants notified police that a male known as
“Muscles” was selling drugs out of his residence. Detectives conducted surveillance on
the residence and sent an informant there to make a controlled “buy.”
{¶3} Lt. Louis Pipoly (“Pipoly”) testified that when he and other detectives
coordinated the “buy,” they knew that Muscles drove an older model maroon Honda
Accord, and they waited for him to arrive. Two men eventually arrived at the address on
West 105th Street in a vehicle matching the description. Detectives observed the
informant enter the building with the men and exit moments later with a small amount of
crack cocaine. Pipoly testified that the cocaine was wrapped in a yellow paper “more
commonly used to package heroin.” Detectives submitted the cocaine for laboratory
analysis and it tested positive. Based on this evidence, police obtained a warrant to
search the residence.
{¶4} Detectives conducted a systematic search of the apartment. In the
bedroom, Pipoly and Detective Robert Klomfas (“Klomfas”) found a package of heroin
wrapped in the same type of yellow paper as the cocaine obtained in the controlled buy.
In the same room, the detectives found a digital scale, packaging material, and two
“release cards” on top of a dresser. The cards, which were issued from the Ohio
Department of Rehabilitation and Correction, contained Cannada’s photo, name, date of
birth, and social security number. Detective Klomfas testified that the photo on the cards
matched the male he had seen exit the Honda Accord on the day of the controlled buy.
{¶5} Detective John Pitts (“Pitts”), who participated in the search, testified that
the apartment had only two bedrooms. It appeared to Pitts that Cannada used the second
bedroom as a storage room because there were several garbage bags packed with
clothing, toys, and household effects in that room. Detective Pitts testified that he
searched the police computer database and found that Cannada was the only name
associated with the alias “Muscles.”
{¶6} At the close of the State’s case, Cannada moved for acquittal pursuant to
Crim.R. 29. The trial court denied the motion and found Cannada guilty on all counts,
including all forfeiture specifications, and sentenced him to one year in prison. This
appeal followed.
{¶7} In his sole assignment of error, Cannada argues there was insufficient
evidence to support his convictions. He contends the evidence presented was not
sufficient to show that he had constructive possession of the drugs and criminal tools.
We disagree.
{¶8} Crim.R. 29(A) provides for a judgment of acquittal “if the evidence is
insufficient to sustain a conviction of such offense or offenses.” The test for sufficiency
requires a determination of whether the prosecution met its burden of production at trial.
State v. Bowden, 8th Dist. No. 92266, 2009-Ohio-3598, ¶ 12. 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 942 (1991), paragraph
two of the syllabus.
{¶9} Cannada was found guilty of drug possession in violation of R.C.
2925.11(A), which provides that “[n]o person shall knowingly obtain, possess, or use a
controlled substance.” Although a person possesses an object when he has control over
it, 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). Nevertheless, possession may be either actual or
constructive. State v. Haynes, 25 Ohio St.2d 264, 269-270, 267 N.E.2d 787 (1971).
Constructive possession exists when an individual knowingly exercises dominion and
control over an object, even though that object may not be within the individual’s
immediate physical possession. State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362(1982), syllabus.
{¶10} Constructive possession may be proven entirely through circumstantial
evidence. Haynes; State v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93 (8th
Dist.2000). “‘[C]ircumstantial evidence is sufficient to sustain a conviction if that
evidence would convince the average mind of the defendant’s guilt beyond a reasonable
doubt.’” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 75,
quoting State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 (1990). Circumstantial
evidence carries the same weight as direct evidence. Jenks at syllabus. Circumstantial
evidence is proof of facts or circumstances by direct evidence from which the trier of fact
may reasonably infer other related or connected facts that naturally or logically follow.
State v. Beynum, 8th Dist. No. 69206, 1996 WL 273777 (May 23, 1996).
{¶11} From the evidence presented at trial, it can be inferred that Cannada
possessed the drugs and criminal tools found in his apartment. Prior to the start of trial,
he stipulated that he lived in the apartment where the drugs were found. Pipoly testified
that he received information from two informants on two separate occasions that a man
known as “Muscles” was selling drugs out of his home at that address. Detective Pitts
testified that Cannada was the only person in their database with the alias “Muscles.”
{¶12} Police obtained a search warrant for Cannada’s apartment after completing a
controlled purchase of drugs from the apartment with a confidential informant. During
the search of the apartment, detectives found a package of heroin, a digital scale,
packaging material, and Cannada’s two release cards in the bedroom. The only other
bedroom was apparently being used as a storage room. Detective Klomfas testified that
the person depicted in the release cards was the same person he observed arrive at the
house moments before the confidential informant purchased cocaine inside the apartment.
{¶13} Counts 1 and 2 both alleged drug possession. Count 1 alleged less than 10
unit doses, and Count 2 alleged less than one gram. The parties stipulated to the lab
report, which confirmed that the packaged substance was heroin. The heroin, digital
scale, and packaging material were found in Cannada’s bedroom. They were not found
in public areas of the apartment such as the living room or kitchen.
{¶14} Viewing this evidence in a light most favorable to the prosecution, we find
sufficient evidence was presented to support Cannada’s convictions for drug possession
and possession of criminal tools.
{¶15} Accordingly, the sole assignment of error is overruled.
{¶16} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
PATRICIA ANN BLACKMON, A.J., and
KENNETH A. ROCCO, J., CONCUR