Opinion
Case No. 98CA2454
September 10, 1999
APPEARANCES:
William L. Archer, Jr., for Appellant.
Scott W. Nusbaum, Ross County Prosecuting Attorney, Steven E. Drotleff, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JUDGMENT ENTRY
Kyle Barfield appeals her conviction for cocaine possession, a violation of R.C. 2925.11, and assigns the following errors:
I. "Defendant-Appellant was denied a fair trial because there was insufficient evidence to support a guilty verdict."
II. "Defendant-Appellant was denied a fair trial upon ineffective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution."
On October 17, 1997, Officers Goble and Moore of the Chillicothe Police Department (CPD) followed appellant in an attempt to execute a search warrant for her person. They contacted CPD Officer McKee to stop appellant's car because they were in an unmarked police van. While waiting for McKee to arrive, they followed appellant to Steven Tyler's house. Goble identified Tyler as a target of an ongoing drug enforcement investigation. Appellant was in Tyler's house only for a few minutes and then drove away. Officer McKee arrived and stopped appellant. McKee noticed that appellant twisted around and moved up and down in her seat once he initiated the stop. Globe searched appellant while Moore checked the area surrounding the driver's seat in the car. He observed several white rocks under the driver's seat. Moore field tested one of the rocks and it tested positive for cocaine. Appellant was arrested. With appellant's permission, Moore drove the car to the police station. A miniature flashlight attached to her key-ring also contained cocaine residue.
Appellant moved to suppress all evidence gathered as a result of the warrantless search of the car arguing that the search was unconstitutional. The trial court overruled the motion finding that appellant did not prove that she, as a nonowner driver, had a legitimate expectation of privacy in the vehicle by showing that she owned the car or had the owner's permission to use the car. The jury found appellant guilty and the trial court sentenced her to eleven months incarceration.
In her first assignment of error, appellant argues that there was insufficient evidence to show that the appellant knowingly possessed the crack-cocaine found in the vehicle she was driving. We initially note that appellant, by failing to make a Crim.R. 29 (A) motion for judgment of acquittal, waived any error concerning the sufficiency of the evidence. See Crim.R. 29(A); State v. Roe (1989), 41 Ohio St.3d 18, 25; State v. Hicks (Dec. 29, 1997), Ross App. No. 2292, unreported. Assuming, arguendo, that appellant had properly made a Crim.R. 29(A) motion, we would find sufficient evidence to uphold appellant's conviction.
When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, could reasonably support a finding of guilt beyond a reasonable doubt. See State v. Thompkins (1997), 78 Ohio St.3d 380, 386 (stating that "sufficiency is the test of adequacy"); State v. Jenks (1991), 61 Ohio St.3d 259, 273. The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560;Jenks, 61 Ohio St.3d at 273. Furthermore, a reviewing court is not to assess "whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring). R.C. 2925.11 sets forth the essential elements of Drug Possession: "(A) No person shall knowingly obtain, possess, or use a controlled substance."
R.C. 2925.01(K) defines possession as follows:
"(K) `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."
We note that an automobile does not constitute "premises" for purposes of this section. See State v. Thomas (1995), 107 Ohio App.3d 239; State v. Brittman (Feb. 10, 1994), Franklin App. No. 93AP-1005, unreported.
Possession may be actual or constructive. State v. Butler (1989), 42 Ohio St.3d 174, 176. Actual possession exists when the circumstances indicate that an individual has or had an item within his immediate physical possession. Constructive possession exists when an individual is able to exercise dominion or control over an item, even if the individual does not have the item within his immediate physical possession. State v. Hankerson (1982), 70 Ohio St.2d 87, syllabus; State v. Wolery (1976), 46 Ohio St.2d 316, 329. Dominion and control may be established by circumstantial evidence alone. State v. Taylor (1997), 78 Ohio St.3d 15; Jenks, 61 Ohio St.3d at 272-73. To find that an individual constructively possessed an item, the evidence must also demonstrate that the individual was "conscious of the presence of the object." Hankerson, 70 Ohio St.2d at 91. A defendant's mere presence in an area where drugs are located does not sufficiently demonstrate that the defendant constructively possessed the drugs. State v. Cola (1991), 77 Ohio App.3d 448, 450; see, also, Cincinnati v. McCartney (1971), 30 Ohio App.2d 45 (defendant did not possess marijuana when he was found sitting six feet from a growing marijuana plant in an apartment he did not occupy or own); State v. Alexander (Apr. 12, 1979), Cuyahoga App. No. 38688, unreported (the defendant was not in possession when drugs were found in the living room while the defendant was sick in bed and other individuals were giving a party); State v. Cofield (June 2, 1983), Cuyahoga App. No. 44601, unreported (insufficient evidence to establish actual or constructive possession when no evidence demonstrated that the defendant leased or occupied the premises, when no drugs or drug paraphernalia were found on the defendant, and when no evidence existed that the marijuana discovered in the apartment was taken from the bedroom where defendant's alleged clothes were found). However, the defendant's proximity to the object, when taken into conjunction with other facts, may constitute some evidence of constructive possession. See State v. Fairrow (Nov. 27, 1995), Ross App. No. 95CA2096, unreported, citing State v. Pruitt (1984), 18 Ohio App.3d 50; State v. Lavender (Mar. 12, 1993), Cuyahoga App. No. 60493, unreported.
Appellant does not contest that the white rocks found in her car were crack cocaine or that crack cocaine is a controlled substance. Viewing the evidence in the light most favorable to appellee, there is sufficient evidence from which a reasonable jury could conclude beyond a reasonable doubt that appellant knowingly possessed crack cocaine. Appellant testified that she had possession of the car in which the crack cocaine was found for at least twenty-five days. Officer Moore testified that he observed the white rocks under the driver's seat approximately two inches back from the front edge of the seat. Officer McKee testified that appellant was twisting around and moving up and down once he initiated the stop. Furtive movement in the vicinity of where drugs are found is probative of dominion and control. In re Farr (Nov. 9, 1993), Franklin App. No. 93AP-201, unreported. Further, the flashlight on appellant's key-ring contained small amounts of cocaine. The presence of illicit drugs on defendant's person is relevant to defendant's ability to exercise dominion and control over other drugs found under defendant's seat in car.State v. Rocker (Sept. 1, 1998), Franklin App. No. 97APA10-1341, unreported. Accordingly, we find no merit in appellant's argument and overrule her first assignment of error.
In her second assignment of error, she argues that she received ineffective assistance of counsel at her suppression hearing and jury trial. The proponent of an ineffective assistance of counsel claim must meet the two-part test ofStrickland v. Washington (1984), 466 U.S. 668 to prevail. Taylor,supra.
Appellant is represented by different counsel on appeal.
First, it must be proven that the attorney made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment to the U.S. Constitution.Strickland; Taylor; State v. Awkal (1996), 76 Ohio St.3d 324. To meet this test, the proponent of an ineffective assistance of counsel claim must show that counsel's representation fell below an objective standard of reasonableness. Strickland; Taylor. Second, and analytically separate, is whether the defense at trial was prejudiced by counsel's ineffectiveness. Strickland;State v. Ballew (1996), 76 Ohio St.3d 244. To show that a defendant has been prejudiced, he or she must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley (1989), 42 Ohio St.3d 136. If one component of theStrickland test disposes of the ineffectiveness claim, it is not necessary to address both components. Strickland; Bradley.
Appellant puts forth six reasons why her counsel was ineffective. We will examine each in turn.
First, she argues that her counsel was ineffective because he failed to put forth evidence that would have established her standing to challenge the search to the vehicle she was driving. Appellant was not prejudiced by this failure. She does not contest that there was probable cause to support the search warrant to search appellant for drugs or evidence of drug trafficking. That, coupled with her furtive movements once she was stopped by a marked police vehicle, gave the officers probable cause to search her vehicle. A warrantless search of an automobile supported by probable cause to believe there is contraband in the automobile does not violate the Fourth Amendment. United States v. Ross (1982), 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572. Appellant has failed to show that absent her counsel's failure to produce evidence at the suppression hearing the outcome of the trial would have been different. We reject her first argument.
Second, she argues that her counsel was ineffective because he failed to object to the introduction of the lab report showing that the white rocks found in her car were crack cocaine. R.C. 2925.51 provides that BCI lab reports are admissible as prima facie evidence when they are properly notarized and served upon an accused. The accused may demand the live testimony of the lab analyst within seven (7) days of the receipt of the report. Failure to make such a request results in admissibility of the report. Id. Since appellant's counsel did not demand the live testimony of the analyst, there was no basis to exclude the report. Her failure to object to the report's admissibility was not prejudicial error. Since it has not been raised, we need not address whether final counsel's failure to demand live testimony resulted in ineffective assistance of counsel. We reject her second argument.
Third, she argues that her trial counsel was ineffective because he failed to move for an acquittal pursuant to Crim.R. 29 (A). Our analysis of appellant's first assignment of error demonstrates that appellant was not prejudiced by this failure. Thus, we reject her third argument.
In her fourth and fifth argument she asserts that her trial counsel was ineffective for not having two witnesses testify,i.e., failing to seek a continuance when Steven Tyler failed to appear to testify even though he had been subpoenaed and failing to have Donna Haydocy testify. These arguments must rely on facts outside the record to establish the second prong of theStrickland test, i.e., the witnesses' testimony, so we cannot reach the merits of appellant's fourth and fifth arguments. State v. Cooperider (1983), 4 Ohio St.3d 226, 228. We reject her fourth and fifth arguments.
In her sixth argument, appellant asserts that her trial counsel was ineffective because he failed to keep in contact with her in order to prepare for trial. Appellant does not assert any specific prejudice from this alleged failure. Furthermore, the record indicates that her attorney attempted to contact appellant several times well in advance of her scheduled jury trial but was unsuccessful because appellant had moved and not informed her attorney of her new address. Thus, his representation did not fall below an objective standard of reasonableness and appellant has shown no prejudice as a result of his alleged failure to communicate with her. We reject her sixth argument.
The dissenting opinion would reverse because (1) appellant's trial counsel was ineffective for failing to object to the placing of the burden of proof upon appellant at the suppression hearing and (2) that such allocation of the burden of proof is plain error. For the following reasons we reject the contention that the trial court erred in allocating the burden of proof or that her trial counsel should have objected to it.
To suppress evidence obtained pursuant to a warrantless search or seizure, a defendant must demonstrate the lack of a warrant and raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to give the prosecutor notice of the basis for the challenge. Xenia v. Wallace (1988), 37 Ohio St.3d 216, paragraph one of the syllabus. Once the defendant has done so, the prosecutor bears the burden of proof, including the burden of going forward with evidence, on the issue of the legality of the warrantless search or seizure. Id., paragraph two of the syllabus.
In this case the motion to suppress and the memorandum in support filed by the appellant alleged that the search she was challenging was not based upon a warrant. We do not agree with the dissenting opinion's conclusion that this allegation is correct. The police had a warrant to search appellant's person for a particular piece of currency. We analogize this situation to one where the police have a warrant for arrest, since an arrest is a seizure and in this case they necessarily had to seize appellant to search her.
When effectuating an arrest warrant, the police may search the limited area from where the arrestee may produce a weapon. Chimel v. California (1969), 395 U.S. 752. This is a limited search permissible only to deny the arrestee access to a weapon or evidence. In this case, there was a possibility that appellant would be released after she was searched if no contraband was found and would therefore have control of the vehicle. She was also seen to be moving about in a manner that could reasonably be construed as an attempt to hide the type of evidence that was the subject of the warrant. Accordingly, we hold that in executing the warrant to search the appellant's person, the officers were entitled to search the immediate area where she was observed potentially attempting to hide evidence. This includes the space under the driver's seat where the crack was found. Thus, the search was based upon a warrant and the burden fell upon the defendant to prove otherwise. Accordingly, the trial court did not err in placing the burden upon the defendant.
Having rejected all of appellant's arguments in support of her second assignment of error, we overrule it.
In sum, we have overruled all of appellant's assignments of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
I must respectfully dissent from the opinion and judgment of the majority in this matter, since it is my belief that both ineffective assistance of counsel and plain error were present in the court below.
I would reverse on the basis of ineffective assistance of counsel in the suppression hearing; or, alternatively, plain error by the trial court by denying the motion to suppress.
In order to prevail upon a claim of ineffective assistance of counsel, appellant must first show that performance of her trial counsel falls below an objective standard of reasonable representation. Should she accomplish this, she must then show a reasonable probability that, if it were not for counsel's errors, the result of the trial would be different. See State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed2d 674.
Failure to object to error below does not preserve that error for appeal, unless "plain error" is found. Appellate courts may, sua sponte, take notice of plain error. Crim.R. 52(B). Notice of plain error is to be taken with utmost caution, under exceptional circumstances, and only to prevent a miscarriage of justice. State v. Cooperrider (1983), 4 Ohio St.3d 226, 448 N.E.2d 452. See State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus. Error does not rise to plain error unless, but for the error, the outcome of the trial would have been different. See State v. Wickline (1990), 50 Ohio St.3d 114, 120, 552 N.E.2d 913, 920.
Appellant was charged with possession of cocaine discovered during the search of the car she was driving. Suppression of this evidence ends the case. Clearly, ineffective assistance of counsel in the suppression hearing results in prejudice to the defendant. State v. Woolum (1976), 47 Ohio App.2d 313, 354 N.E.2d 712. Prejudicial error by the trial court in the conduct of the suppression hearing will also rise to plain error, warranting reversal. See State v. Whealdon (Mar. 31, 1997), Washington App. No. 96CA29, unreported.
Where a party seeks review of the suppression hearing, the standard for that review is de novo. See State v. Anderson (1995), 100 Ohio App.3d 688, 654 N.E.2d 1034. In reviewing the adequacy of counsel's assistance in a suppression hearing, it is appropriate to apply this same standard.
A criminal defendant has the burden to state the basis for his motion to suppress, setting forth factual and legal issues with sufficient clarity to alert the court and prosecutor to the issues to be decided. See State v. Shindler (1994), 70 Ohio St.3d 54, 636 N.E.2d 319, syllabus. Once the movant establishes the issues in the suppression hearing, the burden falls to the state to establish whether or not probable cause existed for the search and seizure of the contested evidence. See Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889; Athens v. Wolf (1974), 38 Ohio St.2d 237, 313 N.E.2d 405.
Here the police obtained a search warrant based on the information from an informant that the appellant was selling crack cocaine. The warrant was limited in scope, authorizing a search of her person for drugs, or related evidence of drug sales (specifically a marked currency note). The warrant also authorized a nighttime stop.
On the night of appellant's arrest, two officers in an unmarked van followed her as she drove in Chillicothe. After several minutes, the officers contacted another officer in a marked car, who stopped the appellant. The stop was at 7:46 p.m. in mid-October in downtown Chillicothe. Although search of the appellant produced no evidence of criminal activity, the police officers discovered several rocks of crack cocaine under the seat in the automobile she was driving. She was arrested and charged with the possession of a controlled substance.
Appellant filed a timely motion to suppress. At hearing on this matter, the trial court instructed appellant's attorney that he had the burden of going forward (tr. 1-2). Trial counsel then called Chillicothe Police Officers Moore and Goebel, the two officers in the van, to testify. Officer McKee, the uniformed patrol officer who actually stopped appellant, did not testify. From the transcript of the suppression hearing, we learn that neither officer believed appellant constituted a threat (tr. 13). Nor was there a passenger in the automobile. Officer Moore had appellant leave the car (tr. 18) and searched the front seat of the car, while the female officer, Goebel, searched appellant (tr. 13). Officer Moore testified that he had no reason to arrest appellant for a traffic violation and appellant was kept eight to ten feet away from the front of the car by Officers Goebel and McKee (tr. 26). Both officers who testified at the motion hearing were aware that the warrant was only for a personal search and not for the search of the car (tr. 11).
The state based the possession charge on several rocks of crack cocaine found under the front seat of the car and cocaine residue found inside a small flashlight on a key ring with the ignition key to the car. Officer Moore testified initially that he found the cocaine under the front seat of the car when he got in to search for weapons (tr. 18). Later he stated that the cocaine was visible in the seat when he opened the door (tr. 23). It must be remembered that this stop and warrantless vehicle search took place after 7:45 p.m. on an October evening when it was most likely twilight or dark. The flashlight and key ring were attached to the ignition key, which was m the car's ignition. Appellant did not have the key ring on her person when she was searched.
Sunset that evening in Chillicothe would have been before 7:00 p.m.
At the close of the hearing, the state raised the issue of appellant's standing to bring her motion, claiming that the appellant had not submitted any evidence that she had a right to operate the automobile. The parties were ordered to brief this issue. The trial court later overruled appellant's motion based on the lack of standing. Appellant's trial counsel did not object to the introduction of this evidence at trial.
Appellant met her burden to establish a legal basis for her motion to suppress. Hence, the burden passed to the state to establish that their warrantless search of the automobile fell within one of the recognized exceptions to her Fourth Amendment protection against unreasonable search and seizure. Yet, trial counsel failed to object when the court insisted that it was his burden to go forward on the motion.
The two witnesses advanced several rationales for their search, asserting at one point that the evidence was in plain view and at another point that the evidence was discovered during a weapons search. However, the trial court did not base its decision on an exception to the prohibition against warrantless searches. Instead it overruled the motion to suppress because of a failure of the appellant to demonstrate her ownership or authority to control the vehicle, hence her lack of standing to object to the search.
I find, therefore, that counsel's assistance was ineffective when he failed to object to the shifting of the burden to the appellant in the suppression hearing. Counsel compounded this failure when he did not raise objections to the introduction of this evidence at trial.
Further, I find that the trial court committed plain error when it impermissibly shifted the burden of going forward to the appellant. See Shindler , supra. The trial court compounded this error when it allowed the state, after the close of evidence, to raise the issue of standing.
It is true that the appellant had the burden to show standing. See State v. Williams , (1995), 73 Ohio St.3d 153, 166, 652 N.E.2d 721, 732-733; State v. Steele (1981), 2 Ohio App.3d 105, 107, 450 N.E.2d 1353, 1356. However, appellant's burden does not arise until the state places the issue in controversy. See State v. Henderson (Nov. 7, 1997), Montgomery App. No. 16016, unreported. The appellant's motion to suppress must only establish that a warrantless search took place and notify the prosecution of the factual or legal grounds on which the defendant's challenge rests. Wallace , supra. Once the defendant meets this burden, the prosecution bears the burden of proving that the search was legal. Even if the police had knowledge of the ownership of the car at the time of the search, they must still introduce that evidence at the suppression hearing. State v. Thomas (Feb. 14, 1997), Lucas App. No. L-96-150, unreported.
Under these circumstances, the search of the vehicle is a clear violation of the Fourth Amendment right of the appellant, requiring suppression of any evidence obtained thereby. This includes any evidence tainted as "fruit of the poisonous tree," since the search and seizure falls within none of the recognized exceptions to the exclusionary rule.
The standing rationale utilized by the court below to overrule the suppression motion, while somewhat novel in its application, is seriously flawed. The state did not properly place this issue in question, nor did it do so in a timely fashion. It is required to do so to afford the appellant the opportunity to establish her reasonable expectation of privacy in the borrowed automobile and, thereby, establish her standing to challenge the warrantless search. Ignoring this procedural requirement, and then using it as a basis to deny the appellant's suppression motion, is inappropriate and unacceptable to this writer.
When one couples the above errors with the inappropriate placement of the burdens at the motion hearing, the basis for reversal can be either ineffective assistance of counsel, or plain error. Either error is sufficient to require reversal of the denial of appellant's motion to suppress by the trial court.
I would, therefore, REVERSE the lower court's decision, order the motion to suppress be granted and discharge the defendant.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and 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 Ross County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, P.J.: Concurs in Judgment and Opinion.
Evans, J.: Dissents with Opinion.
For the Court
BY: _____________________________ William H. Harsha, Judge