State v. Ward , 2022 Ohio 3884 ( 2022 )

[Cite as State v. Ward, 2022-Ohio-3884.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
KATHERINE ANN WARD, : Case No. 2022CA00027
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2021-
CR-2245
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 31, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE D. COLEMAN BOND
Prosecuting Attorney 116 Cleveland Avenue N.W.
Stark County, Ohio Suite 600
Canton, Ohio 44702
By: TIMOTHY E. YAHNER
Assistant Prosecuting Attorney
Appellate Division
110 Central Plaza South Ste. 510
Canton, Ohio 44702-1413
Stark County, Case No. 2022CA00027 2
Baldwin, J.
{¶1} Appellant, Katherine Ann Ward, appeals her conviction of a violation of R.C.
2925.11(A),(C)(1)(a), aggravated possession of drugs (methamphetamine), a felony of
the fifth degree. The State of Ohio is appellee.
STATEMENT OF THE FACTS AND THE CASE
{¶2} Canton police officers discovered methamphetamine and fentanyl in
vehicles owned by Ward and she conceded that she was the owner of the drugs. She
later recanted her confession regarding the fentanyl and now claims her conviction was
not supported by sufficient evidence and was against the manifest weight of the evidence.
{¶3} Canton police officers were dispatched to a disturbance call on October 6,
2021 at approximately 7:50 p.m. When they first arrived they did not find anyone in the
area and left, but after a second call they returned and found the appellant and another
individual. When the police cruiser arrived at the scene the other person, later identified
as Richard Tovissi, started walking away from the cruiser and Ward started walking
toward the cruiser.
{¶4} The officers spoke to both of the individuals at the scene. Ward claimed the
two vehicles present at the scene belong to her. The officer asked Ward for permission
to search the vehicles and ask if there were any guns inside them. Ward responded that
there were no guns in the vehicles and she granted consent to the search.
{¶5} During the search of one vehicle the officer discovered a bag of suspected
methamphetamine in the vehicle. At that point both Ward and Tovissi were detained and
read their Miranda rights. Ward volunteered that the drugs belonged to her. At that point
Stark County, Case No. 2022CA00027 3
she was asked to work with the police department as a confidential informant in exchange
for withholding charges, but she declined to take advantage of this opportunity.
{¶6} The testimony at trial indicated that Tovissi had walked toward one of the
vehicles and reached inside. He denied putting any drugs in the vehicle and stated that
he was merely leaving the keys on the hood of the vehicle. The videos did not show that
there were any keys on the car. Tovissi was sweating profusely, argumentative and his
pupils were dilated, signs that the officers recognized as evidence of methamphetamine
use. The officers suspected that Tovissi planted some or all of the drugs until Ward
confessed to ownership.
{¶7} The officers described Ward as nervous and she admitted to using
methamphetamine. She was not sweating or combative but she did act in a way that led
one of the officers to believe that she had also been using methamphetamine. She
inappropriately laughed and joked when she claimed ownership of the methamphetamine
and her demeanor and emotional swings suggested to the officer that she was under the
influence of methamphetamine.
{¶8} After placing Ward in the back of the cruiser, the officers searched the
second vehicle and found a small box on the driver’s side containing fentanyl, THC wax,
pipes and scales. An officer asked Ward if she owned the box or “bindle” and she initially
claimed it. After the contents of the box was disclosed, Ward claimed that she did not own
the fentanyl that was in that container. Though she denied ownership of the fentanyl and
other contents of the box, she did not retract her admission that she owned the
methamphetamine.
Stark County, Case No. 2022CA00027 4
{¶9} The jury found Ward guilty of aggravated possession of drugs,
methamphetamine, a violation of R.C. 2925.11(A)/(C),(1)(a), and a felony of the fifth
degree, but not guilty of possession of a fentanyl-related compound. She was sentenced
to three years of community control.
{¶10} Ward filed a timely appeal and submitted two assignments of error:
{¶11} “I. APPELLANT ASSERTS STATE(sic) FAILED TO PRESENT
SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST HER, AND THE
CONVICTION MUST BE REVERSED.”
{¶12} “II. APPELLANT ASSERTS HER CONVICTION WAS NOT SUPPORTED
BY THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE
REVERSED.”
STANDARD OF REVIEW
{¶13} Ward contends that her conviction is not supported by sufficient evidence
and is against the manifest weight of the evidence. Sufficiency of the evidence and
manifest weight of the evidence are separate and distinct legal standards. State v.
Thompkins, 78 Ohio St.3d 380, 386–87, 678 N.E.2d 541 (1997). Essentially, sufficiency
is a test of adequacy. Id. A sufficiency of the evidence standard requires the appellate
court to examine the evidence admitted at trial, in the light most favorable to the
prosecution, to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492, 494, syllabus, paragraph 2.
{¶14} In contrast to the sufficiency of the evidence analysis, when reviewing a
weight of the evidence argument, the appellate court reviews the entire record, weighing
Stark County, Case No. 2022CA00027 5
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts of 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. Thompkins at 387.
ANALYSIS
{¶15} Ward was convicted of a violation of R.C. 2925.11(A)/(C)(1)(a) which states:
No person shall knowingly obtain, possess, or use a controlled substance
or a controlled substance analog.
**
(C) Whoever violates division (A) of this section is guilty of one of the
following:
(1) If the drug involved in the violation is a compound, mixture,
preparation, or substance included in schedule I or II, with the exception of
marihuana, cocaine, L.S.D., heroin, any fentanyl-related compound,
hashish, and any controlled substance analog, whoever violates division (A)
of this section is guilty of aggravated possession of drugs. The penalty for
the offense shall be determined as follows:
(a) Except as otherwise provided in division (C)(1)(b), (c), (d), or (e) of
this section, aggravated possession of drugs is a felony of the fifth degree,
and division (B) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender.
{¶16} Ward does not dispute that possession of the substance found in her
vehicle, methamphetamine, is prohibited by the statute, nor does she dispute the state’s
Stark County, Case No. 2022CA00027 6
conclusion that the substance was methamphetamine. She contends the record lacks
sufficient evidence to establish that she possessed the methamphetamine.
{¶17} “ “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.”
R.C. 2925.01(K). Possession may be actual or constructive. State v. Butler (1989), 42
Ohio St.3d 174, 176, 538 N.E.2d 98. Constructive possession occurs when a person
knowingly exercises dominion or control over the item, even without physical possession.
State v. Hankerson (1982), 70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus. More than just
a person's presence in the vicinity of the item is necessary to prove constructive
possession. See State v. Haynes (1971), 25 Ohio St.2d 264, 267 N.E.2d 787, paragraph
two of syllabus. Rather, additional circumstances, such as the close proximity of the item
and its ready availability, support the conclusion of constructive possession. State v.
Riley, 9th Dist. No. 20618, 2001-Ohio-1785. A defendant's “possession of the keys to the
automobile is a strong indication of control over the automobile and all things found in or
upon the automobile.” Furthermore, when “one is found to be the driver of a car in which
drugs are within easy access of the driver, constructive possession will be established.”
State v. Miller (July 27, 1999), 4th Dist. No. 98-CA-2467, quoting State v. Kurtz (Oct. 27,
1998), 10th Dist. No. 98AP-210.
{¶18} Likewise, a jury can properly conclude that a defendant who exercises
dominion and control over an automobile also exercises dominion and control over illegal
drugs found in the automobile. State v. Smith, 162 Ohio App.3d 208, 2005-Ohio-3579, at
¶ 23-28; State v. Trembly (2000), 137 Ohio App.3d 134, 141.
Stark County, Case No. 2022CA00027 7
{¶19} The officers arrived at the scene of the reported disturbance and found
Ward and Tovissi, both exhibiting what they perceived as signs of methamphetamine use.
Ward claimed ownership and control of the two vehicles found at the scene, was
apparently homeless and living in the vehicles, and consented to the search that resulted
in the discovery of the methamphetamine. She repeatedly claimed the methamphetamine
and admitted that she used methamphetamine. We find that this evidence, if believed,
would convince the average mind that Ward possessed the methamphetamine beyond a
reasonable doubt.
{¶20} We find that there was sufficient evidence to support the conviction of Ward
for possession of methamphetamine. Further, after a careful review of the record and the
arguments, we find that the jury did not lose its way or create a manifest miscarriage of
justice. Ward repeatedly admitted ownership and possession of the methamphetamine
and the jury accepted her initial confession as the more credible. We find no reason to
question the holding of the jury.
{¶21} Ward’s first and second assignments of error are denied.
Stark County, Case No. 2022CA00027 8
{¶22} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, John, J. concur.