State v. Rowe , 2016 Ohio 5395 ( 2016 )

[Cite as State v. Rowe, 2016-Ohio-5395.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27870
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JEREMIAH N. ROWE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2013 02 0424 (B)
DECISION AND JOURNAL ENTRY
Dated: August 17, 2016
MOORE, Judge.
{¶1} Defendant-Appellant Jeremiah N. Rowe appeals from the judgment of the
Summit County Court of Common Pleas. We affirm.
I.
{¶2} In 2013, Mr. Rowe was indicted in a multi-count indictment, which was later
supplemented, involving charges concerning events occurring on two separate dates: November
24, 2012, and February 11, 2013. The November 24, 2012 incident involved a shooting at
business and the February 11, 2013 incident involved the execution of a search warrant at a
residence on Maxen Drive in Akron based upon suspected drug trafficking. With respect to the
November 24, 2012 incident, Mr. Rowe was charged with improperly discharging a firearm at or
into a habitation, along with an accompanying firearm specification, and having weapons while
under disability. With respect to the February 11, 2013 incident, Mr. Rowe was charged with
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trafficking in heroin, possession of heroin, possession of marijuana, and two counts of having
weapons while under disability.
{¶3} While Mr. Rowe initially entered a guilty plea, he was later allowed to withdraw
it. The matter proceeded to a jury trial on all counts aside from the possession of marijuana
charge, which was tried to the court. The trial court granted Mr. Rowe’s Crim.R. 29 motion with
respect to the charge of improperly discharging a firearm at or into a habitation, and the charge
and the accompanying firearm specification were dismissed. Mr. Rowe was found not guilty of
trafficking in heroin and the jury was unable to reach a verdict on the count for having weapons
while under disability related to the November 24, 2012 incident. The State elected to dismiss
the latter charge. The jury found Mr. Rowe guilty of possession of heroin and two counts of
having a weapon while under disability related to the February 11, 2013 incident. The trial court
found Mr. Rowe guilty of the possession of marijuana count. Thus, Mr. Rowe was not convicted
of any offenses related to the November 24, 2012 incident. Mr. Rowe was sentenced to a total of
10 years in prison.
{¶4} As the trial court failed, on more than one occasion, to impose a sentence on the
possession of marijuana count, Mr. Rowe’s prior attempted appeals were dismissed. See State v.
Rowe, 9th Dist. Summit No. 27778 (May 20, 2015). Following the issuance of a final appealable
order, Mr. Rowe has again appealed, raising two assignments of error for our review, which will
be addressed out of sequence to facilitate our review.
II.
ASSIGNMENT OF ERROR II
THE JURY VERDICT FINDING MR. ROWE GUILTY OF POSSESSION OF
HEROIN AND WEAPONS UNDER DISABILITY WAS AGAINST THE
SUFFICIENCY OF THE EVIDENCE.
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{¶5} Mr. Rowe argues in his second assignment of error that there was insufficient
evidence for a jury to find him guilty of possession of heroin and having weapons while under
disability.
{¶6} The issue of whether a conviction is supported by sufficient evidence is a question
of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. 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 (1991), paragraph two of the syllabus.
{¶7} Mr. Rowe was found guilty of possession of heroin in violation of R.C.
2925.11(A), (C)(6) and two counts of having weapons while under disability, one in violation of
R.C. 2923.13(A)(2)/(3) and one in violation of R.C. 2923.13(A)(1). Each of these counts
involved events that took place on February 11, 2013. While Mr. Rowe appears to assert that he
was found guilty of having weapons while under disability with respect to the events of
November 24, 2012, such is not the case. The jury was unable to reach a verdict on that count,
and it was subsequently dismissed. Accordingly, to that extent, Mr. Rowe’s argument is without
merit as he was not found guilty of that charge.
{¶8} On appeal, Mr. Rowe appears to only challenge whether there was sufficient
evidence that the heroin and firearm were his. There is no dispute that the items were not found
on Mr. Rowe’s person. Thus, Mr. Rowe’s argument is that there was insufficient evidence that
he constructively possessed the heroin and the firearm. R.C. 2925.11(A) and (C)(6), when
considered together, provide that “[n]o person shall knowingly obtain, possess, or use” heroin.
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Possess “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.” R.C. 2925.01(K). R.C. 2923.13(A)(1)-(3) provides that:
Unless relieved from disability under operation of law or legal process, no person
shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if
any of the following apply:
(1) The person is a fugitive from justice.
(2) The person is under indictment for or has been convicted of any felony offense
of violence or has been adjudicated a delinquent child for the commission of an
offense that, if committed by an adult, would have been a felony offense of
violence.
(3) The person is under indictment for or has been convicted of any felony offense
involving the illegal possession, use, sale, administration, distribution, or
trafficking in any drug of abuse or has been adjudicated a delinquent child for the
commission of an offense that, if committed by an adult, would have been a
felony offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse.
{¶9} “This Court has repeatedly held that a person may knowingly possess a substance
or object through either actual or constructive possession.” (Internal quotations and citations
omitted.) State v. Ibrahim, 9th Dist. Medina No. 12CA0048-M, 2013-Ohio-983, ¶ 8.
“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.”
(Internal quotations and citations omitted.) Id.; State v. Tucker, 9th Dist. Lorain No.
13CA010339, 2016-Ohio-1353, ¶ 21. “This Court continues to recognize that the crucial issue
is not whether the accused had actual physical contact with the article concerned, but whether the
accused was capable of exercising dominion [and] control over it.” (Internal quotations and
citations omitted) Id. Notwithstanding the foregoing, with respect to drug possession,
“constructive possession may be inferred from the drug[’s] presence in a usable form and in
close proximity to the defendant.” (Citations omitted.) Id. Additionally, “[p]ossession of a drug
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includes possessing individually, or jointly with another person. Joint possession exists when
two or more persons together have the ability to control an object, exclusive of others.” (Internal
quotations and citation omitted.) State v. Fletcher, 9th Dist. Summit No. 23171, 2007-Ohio-146,
¶ 20.
{¶10} After police received complaints of drug dealing at the address on Maxen Drive,
police began to investigate the location. Detective Tim Harvey, then with the Street Narcotic
Uniform Detail (“SNUD”) unit of the Akron Police Department, testified that he began the
investigation approximately a week prior to the search. During that time, a confidential
informant made a couple of controlled purchases of marijuana from Mr. Rowe at the Maxen
Drive residence. Only marijuana was ever purchased during the controlled buys. Through
statements made by the informant and Tisha Gindraw, the named lessee of the residence, who
was not living at the residence at the time, Detective Harvey learned that Mr. Rowe was living at
Maxen Drive. Ms. Gindraw was the girlfriend of one of Mr. Rowe’s brothers. Thus, Mr. Rowe
was the target of the investigation. Based upon the controlled purchases and information
provided by the confidential informant, Detective Harvey was issued a warrant to search the
residence. At the time, Mr. Rowe had warrants outstanding for his arrest related to the
November 24, 2012 shooting at a business.
{¶11} Detective Brian Nida with the SNUD unit testified that, on February 11, 2013, he
was part of a team that was conducting pre-search warrant surveillance of the Maxen Drive
residence. That day he was partnered with Detective Ted Male. The team was going to wait
until Mr. Rowe left in a vehicle, follow him, and then conduct a traffic stop. Thereafter, police
would execute the search warrant.
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{¶12} Undercover units observed a vehicle leaving the residence; however, it was not
determined who was in the vehicle. Uniformed members of the team, including Detectives Nida
and Male, attempted to stop the vehicle, but it fled and led officers on a high-speed chase.
Ultimately, the driver of the vehicle, Garland Phelps, was apprehended after he fled on foot into
the backyard of the residence on Maxen Drive. Mr. Phelps was a known heroin dealer.
Approximately $5400 was recovered from his person.
{¶13} After Mr. Phelps was apprehended, police conducted a search of the residence at
Maxen Drive. A surveillance camera was recovered from outside the residence and a
refrigerator was found wedged against the door impeding entry. Upon entry, two 17-18 year-old
males were found playing video games on the couch. One of the individuals told Detective
Harvey that he was visiting his brother, Mr. Rowe.1 Two photographs that included Mr. Rowe
were found, one in the kitchen and one in the living room. A butter knife with cocaine residue
was found in the kitchen cupboard and four digital scales were found in the residence.
Additionally, approximately 50 grams of marijuana was found in a trash can.
{¶14} Inside the northeast bedroom, 2 small bindles of heroin were found in the register,
and inside a bag near the entrance of the closet in that bedroom, covered by some clothes, police
found a larger amount of heroin and a .380 semi-automatic pistol. Also in that bedroom, officers
discovered a car rental agreement with Mr. Rowe’s mother’s name on it. That bedroom
contained access to the attic, which in turn provided access to the roof. Mr. Rowe was
apprehended from the roof of the residence. Detective Male estimated that Mr. Rowe was found
approximately 20 feet above where the heroin and firearm were discovered.
1
Mr. Rowe testified that the individual was not technically related to him, but they
nonetheless referred to each other as brothers because Mr. Rowe was dating the individual’s
sister. For ease of discussion, we will refer to him as Mr. Rowe’s brother.
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{¶15} Sergeant Jason Malick of the narcotics unit of the Akron Police Department
estimated that the street value of the heroin found in the bedroom was approximately between
$5,000 to $10,000. Detective Harvey acknowledged that an amount of money in that range was
found on Mr. Phelps.
{¶16} Also admitted into evidence were judgment entries of three of Mr. Rowe’s prior
convictions, two for possession of cocaine, and one for aggravated assault, along with a criminal
gang specification, as well as the laboratory results confirming the substances found included
heroin.
{¶17} Mr. Rowe testified in his own defense about the events of February 11, 2013. At
the time, he asserted that he was living on West Thornton Street with his mother and not Maxen
Drive. He admitting to selling marijuana and indicated that he sold it out of the Maxen Drive
house because he did not want to sell drugs out of his mother’s house. Mr. Rowe denied selling
cocaine or heroin. He further denied having any involvement with heroin.
{¶18} On February 11, 2013, Mr. Rowe stated that his brother got a call from Mr.
Phelps wanting to buy marijuana. Prior to that day, Mr. Rowe indicated he did not know Mr.
Phelps. When Mr. Phelps arrived, he repeatedly made comments Mr. Rowe interpreted to mean
that there were a lot of police officers in the area. He told Mr. Rowe how much marijuana he
wanted to buy and Mr. Rowe went to weigh it. While he was weighing the marijuana, Mr.
Rowe’s brother and the other individual went into the northeast bedroom and closed the door.
When they came out, Mr. Rowe stated that he overheard Mr. Phelps say, “I need to put
something up[,]” and that he would be back to get it. Mr. Rowe’s brother and the other
individual agreed.
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{¶19} After Mr. Phelps left, Mr. Rowe noticed what he believed to be police officers
outside the residence. At that point, he discarded the marijuana he had in the trash and he
decided to flee. He opted to attempt to escape via the roof, which he accessed through the attic
through the northeast bedroom; however, police observed him on the roof. Mr. Rowe indicated
that he was attempting to flee because of the outstanding warrants related to the November 24,
2012 incident; not because of the contraband in the Maxen Drive residence. Mr. Rowe denied
that the gun and heroin found in the bedroom were his, and instead testified that they must have
been Mr. Phelps’. While this theory of the case was argued to the jury, it was unavailing to Mr.
Rowe.
{¶20} After viewing the evidence in a light most favorable to the prosecution, we
conclude that the State presented sufficient evidence whereby a jury could reasonably find that
Mr. Rowe constructively possessed the heroin and firearm found during the search of the
residence on Maxen Drive. See Ibrahim, 2013-Ohio-983, at ¶ 8; Tucker, 2016-Ohio-1353, at ¶
21.
{¶21} There was evidence that Mr. Rowe lived at the residence, and there was also
evidence tying Mr. Rowe to the bedroom where the heroin and firearm were found. See Tucker
at ¶ 24 (summarizing cases where constructive possession of a firearm was established). Thus,
there was circumstantial evidence that Mr. Rowe knowingly exercised dominion and control
over the heroin and firearm. Ibrahim at ¶ 8; Tucker at ¶ 21. The only document admitted into
evidence found in the bedroom was a car rental lease with Mr. Rowe’s mother’s name on it. Mr.
Rowe admittedly sold marijuana out of the residence and, according to Detective Harvey’s
source, lived at the residence. Photographs of Mr. Rowe were found in the residence. Mr. Rowe
was found on the roof, which was accessed by going through the attic, which was reached
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through the bedroom containing the heroin and firearm. Mr. Rowe himself admitted to going
through the bedroom, to the attic, in order to escape through the roof. Thus, there was evidence
that Mr. Rowe had recently accessed the bedroom and had knowledge of how to access the attic
and roof. There was also evidence that Mr. Rowe opted to flee while the other two individuals
remained on the couch in the living room. See State v. Clayton, 9th Dist. Summit No. 27352,
2015-Ohio-498, ¶ 17 (noting flight can be evidence of consciousness of guilt). And while there
were two other individuals found at the residence at the time, there was evidence that at least Mr.
Rowe’s brother was just visiting him. Thus, we conclude that the State presented sufficient
evidence, if believed, whereby a jury could find that Mr. Rowe constructively possessed the
heroin and firearm.
{¶22} We overrule Mr. Rowe’s second assignment of error.
ASSIGNMENT OF ERROR I
MR. ROWE’S CONVICTIONS WERE CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶23} Mr. Rowe asserts in his first assignment of error that his convictions for
possession of heroin and having weapons while under disability were against the manifest weight
of the evidence. He does not appear to challenge his conviction for the possession of marijuana.
{¶24} When a defendant asserts that his conviction is against the manifest weight of the
evidence:
an appellate court must review 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 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
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{¶25} Much of Mr. Rowe’s attention in his merit brief is focused on attacking the
credibility of witnesses involved in the November 24, 2012 incident. However, Mr. Rowe was
not convicted of any offense related to that incident. Accordingly, we again limit our discussion
to his convictions for possession of heroin and having weapons while under disability that arose
out of the February 11, 2013 search of the residence on Maxen Drive.
{¶26} Mr. Rowe’s argument is essentially that the weight of the evidence supports the
conclusion that someone other than Mr. Rowe possessed the heroin and the firearm. At trial,
during the cross-examination of Detective Harvey, Mr. Rowe’s counsel submitted as evidence an
indictment naming Mr. Rowe’s brother, as well as a plea entered by Mr. Rowe’s brother, to
possession of heroin and possession of marijuana. On appeal, Mr. Rowe asserts that the heroin
mentioned in the indictment and plea was the same heroin found at the Maxen Drive residence.
Thus, according to Mr. Rowe, if his brother possessed the heroin, Mr. Rowe could not have.
{¶27} First, we note that Mr. Rowe has cited no law that would support that proposition.
See State v. Deem, 9th Dist. Summit No. 26761, 2013-Ohio-5227, ¶ 10, quoting State v.
Figueroa, 9th Dist. Summit No. 22208, 2005-Ohio-1132, ¶ 8. (noting that “[p]ossession of a
drug includes possessing individually or jointly with another person. Joint possession exists
when two or more persons together have the ability to control an object, exclusive of others.”)
Second, the record does not factually support Mr. Rowe’s claim. The indictment involving Mr.
Rowe’s brother lists May 9, 2013, as the date that Mr. Rowe’s brother possessed the heroin. The
search of the residence on Maxen Drive occurred on February 11, 2013, and that heroin was
confiscated by the police, and submitted into evidence at trial. Thus, the heroin for which Mr.
Rowe’s brother was indicted for possessing could not be the same heroin as that found during the
search of the Maxen Drive residence.
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{¶28} Mr. Rowe additionally argues that the weight of the evidence supported that the
firearm and heroin belonged to Mr. Phelps and not to Mr. Rowe. Thus, Mr. Rowe essentially
asserts that his testimony was more credible, than that presented by the State’s witnesses. Mr.
Rowe posits that his version of events is more credible because it is more likely that Mr. Phelps,
who was a known heroin dealer, and who had just left the property, hid the heroin and firearm at
the Maxen Drive residence after he realized police were in the area, than that Mr. Rowe, who had
no prior known association with heroin, possessed the heroin and firearm. This Court recognizes
that “the trier of fact is in the best position to determine the credibility of witnesses and evaluate
their testimony accordingly.” (Internal quotations and citation omitted.) State v. Tabassum, 9th
Dist. Summit No. 25568, 2011-Ohio-6790, ¶ 26. “It is well-settled that the [trier of fact] is free
to believe all, part, or none of the testimony of each witness.” (Internal quotations and citation
omitted.) State v. Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 24. We note that the
jury was aware that Mr. Phelps was stopped with over $5,000 on his person; an amount that
Detective Harvey testified would have been within the range for the street value of the amount of
heroin found in the Maxen Drive residence. Thus, it would not have been unreasonable, in light
of the other evidence discussed above, for the jury to conclude that Mr. Rowe possessed the
heroin and firearm. The jury was also aware of Mr. Rowe’s prior convictions, which also could
have altered the jury’s perception of Mr. Rowe’s credibility. Accordingly, after thoroughly and
independently reviewing the record, and given Mr. Rowe’s arguments on appeal, we cannot say
the jury lost its way in finding him guilty of possession of heroin and having weapons while
under disability.
{¶29} Mr. Rowe’s first assignment of error is overruled.
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III.
{¶30} Mr. Rowe’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
CELEBREZZE, J.
CONCUR.
(Celebrezze, J., of the Eighth District Court of Appeals, sitting by assignment.)
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APPEARANCES:
JASON D. WALLACE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.