State v. Garza , 2020 Ohio 4001 ( 2020 )

[Cite as State v. Garza, 2020-Ohio-4001.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
W
STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
CHRISTOPHER J. GARZA, : Case No. 2020CA00018
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2019-
CR-1953
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 6, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO KENNETH STAIDUHAR
Prosecuting Attorney Henderson, Mokhtari & Weatherly
Stark County, Ohio 1231 Superior Ave
Cleveland, Ohio 44114
By: KRISTINE W. BEARD
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1416
Stark County, Case No. 2020CA00018 2
Baldwin, J.
{¶1} Defendant-appellant Christopher Garza appeals his conviction and
sentence from the Stark County Court of Common Pleas. Plaintiff-appellee is the State of
Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 22, 2019, the Stark County Grand Jury indicted appellant on
one count of aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1)(c), a
felony of the second degree. At his arraignment, appellant pleaded not guilty to the
charge.
{¶3} Thereafter, a jury trial commenced on December 10, 2019. At the trial,
Officer Yuri Vovk of the Jackson Police Department testified that on September 19, 2019
he was dispatched to an address in Jackson Township in response to a possible burglary
in progress. The call had indicated that copper pipe and other household items were being
taken out of the residence. When he arrived, the front door was open. Officer Vovk
knocked on the door and announced his presence, but no one responded. He then
noticed a white male walking towards the kitchen. The man refused to come out and
speak with the officer, so Officer Vovk decided to enter the residence and detain the man
for further investigation.
{¶4} Once inside the house, Officer Vovk noticed another man sitting in the living
room and there were multiple items of drug paraphernalia around the house. The drug
items were not tagged into evidence. One of the officers heard someone moving upstairs
and as he headed upstairs, identified himself and asked if anyone else was in house.
There was no response. A further search of the house yielded a male located in an
Stark County, Case No. 2020CA00018 3
upstairs bedroom in a small closet underneath a blanket. Two or three baggies with a
crystal like substance were located on the closet floor. The drugs were located behind a
board that was leaning against the wall of the small closet. No illegal substances were
found on appellant. No one else was in the room.
{¶5} Officer Vovk testified that the house was considered a drug house by his
department and that he did not believe that the house was appellant’s residence. There
had been a prior burglary at the house.
{¶6} Officer Christopher Bader of the Jackson Police Department testified that
he worked with Officer Vovk and found appellant hiding underneath a blanket in the corner
of the closet. Appellant told him that he was sleeping in the closet. When he moved the
board in the closet aside, he found two bags of what he believed to be methamphetamines
in the closet and collected them as evidence. The Stark County Crime Lab later confirmed
that the drugs were methamphetamines. He testified that the homeowner later appeared
and verified that the three individuals, including appellant, in the house had permission to
be there. Officer Bader testified that he did not see any of the drug paraphernalia that
Officer Vovk had said was sitting out in the house. Officer Bader testified that appellant
had later told him that he was at the house to sell a computer and there was, in fact, a
computer there. The computer was submitted into evidence. The homeowner told the
officer that a total of five individuals were allowed to be in the home during the time that
they searched the home. The officers only located three people. He admitted that
appellant could have been hiding in the closet because he had an active warrant. He did
not ask for any fingerprint or DNA testing on the bags containing the drugs to see if
appellant had placed the drugs in the closet or come into any contact with the drugs.
Stark County, Case No. 2020CA00018 4
{¶7} Forensic testing of the bags concluded that one of the bags contained
approximately 13.9 grams of methamphetamine while the other contained 1.58 grams.
{¶8} At the conclusion of the evidence and the end of deliberations, the jury
found appellant guilty. Appellant was sentenced to six to nine years in prison and ordered
to serve three (3) years of post-release control.
{¶9} Appellant now appeals, raising the following assignments of error on
appeal:
{¶10} “I. APPELLANT’S CONVICTION FOR AGGRAVATED POSSESSION IS
NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
{¶11} “II. APPELLANT’S CONVICTION FOR AGGRAVATED POSSESSION IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶12} “III. TRIAL COUNSEL WAS INEFFECTIVE AND TRIAL COUNSEL’S
INEFFECTIVENESS PREJUDICED APPELLANT WHEN HE FAILED TO FILE A
MOTION FOR DNA TESTING.”
I, II
{¶13} Appellant, in his first two assignments of error, argue that appellant’s
conviction for aggravated possession of drugs is not supported by sufficient evidence and
is against the manifest weight of the evidence. We disagree.
{¶14} On review for sufficiency, this court is to examine the evidence at trial to
determine whether such evidence, if believed, would support a conviction. State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “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.”
Stark County, Case No. 2020CA00018 5
Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing court is to
examine 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 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. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). The granting of a new trial “should be exercised
only in the exceptional case in which the evidence weighs heavily against the conviction.”
Martin at 175.
{¶15} Appellant was convicted of aggravated possession of drugs in violation of
R.C. 2925.11(A)(C)(1)(c). R.C 2925.11(A) states that “(A) No person shall knowingly
obtain, possess, or use a controlled substance or a controlled substance analog.”
{¶16} In this case, the drugs were not found on appellant’s person and he did not
admit that he obtained, possessed or used them. However, 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 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 (8th Dist. 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.
Stark County, Case No. 2020CA00018 6
{¶17} In the case sub judice, appellant was found in a small upstairs closet in a
known drug house. No one else was upstairs. When the officers yelled to determine if
anyone was present upstairs after hearing someone moving upstairs, appellant did not
respond. The drugs were found in close proximity to appellant under a board. The jury
could infer that appellant knew about and exercised dominion and control over the drugs.
While appellant said that he was at the house to get some sleep and later said that he
was there to sell a computer, the jury, as trier to fact, was free to believe or disbelieve
appellant’s explanations. They are also free to disbelieve that appellant was hiding from
a warrant.
{¶18} We find that, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found that appellant knowingly possessed
the drugs. We further find that the jury did not clearly lose its way in convicting appellant.
{¶19} Appellant’s first and second assignments of error are, therefore, overruled.
III
{¶20} Appellant, in his third assignment of error, argues that his trial counsel was
ineffective in failing to request DNA testing on the bags of methamphetamines.
{¶21} Our standard of review for ineffective assistance claims is set forth in
Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Ohio
adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective
assistance of counsel. First, we must determine whether counsel's assistance was
ineffective; i.e., whether counsel's performance fell below an objective standard of
reasonable representation and was violative of any of his or her essential duties to the
Stark County, Case No. 2020CA00018 7
client. If we find ineffective assistance of counsel, we must then determine whether or not
the defense was actually prejudiced by counsel's ineffectiveness such that the reliability
of the outcome of the trial is suspect. This requires a showing that there is a reasonable
probability that but for counsel's unprofessional error, the outcome of the trial would have
been different. Id. However, trial counsel is entitled to a strong presumption that all
decisions fall within the wide range of reasonable professional assistance. State v. Sallie,
81 Ohio St.3d 673, 675, 1998-Ohio-343, 693 N.E.2d 267.
{¶22} We concur with appellee that appellant has failed to show how DNA testing
would have affected the outcome of appellant’s case and that it is purely speculative that
it would have resolved this issue in appellant’s favor. There is nothing in the record as to
what any DNA testing would have revealed so we cannot say that counsel was ineffective
in failing to file a motion for DNA testing or that appellant was prejudiced.
{¶23} Appellant’s third assignment of error is, therefore, overruled.
Stark County, Case No. 2020CA00018 8
{¶24} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, John, J. concur.