[Cite as State v. Voll,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-12-04

v.

JONNA M. VOLL, OPINION

DEFENDANT-APPELLANT.

Appeal from Marysville Municipal Court Trial Court No. CRB1100716

Judgment Affirmed

Date of Decision: August 27, 2012

APPEARANCES:

Alison Boggs for Appellant

Tim M. Aslaner for Appellee Case No. 14-12-04

SHAW, P.J.

{¶1} Defendant-appellant Jonna M. Voll (“Voll”) appeals the January 9,

2012, judgment of the Marysville Municipal Court in Union County, Ohio finding

her guilty of possession of drug paraphernalia in violation of R.C. 2925.14(C)(1),

a misdemeanor of the fourth degree.

{¶2} The facts relevant to this appeal are as follows. On September 18,

2011 at approximately 5:10 p.m., a vehicle in which Voll was a backseat

passenger was stopped by Trooper Beynon1 for failing to use a turn signal in

Union County. When Trooper Beynon approached the vehicle, he asked the

driver to step out of the vehicle for officer safety purposes.

{¶3} Trooper Beynon took the driver back to his vehicle and explained to

the driver why the driver had been stopped. According to Trooper Beynon, the

driver was very nervous, was trembling, and his pulse was visibly accelerated.

Trooper Beynon then asked the driver if there were any narcotics or weapons in

the car, to which the driver said there were not. When Trooper Beynon asked if he

could search the vehicle, the driver said that Trooper Beynon would need a

warrant.

1 The official transcript provided in the record misstates Trooper Beynon’s name as “Trooper Biner.” Voll’s brief also refers to Trooper Beynon as “Trooper Biner.” However, as pointed out in the State’s brief, “Trooper Biner” is actually “Trooper Beynon.” Trooper Beynon was the officer who issued the citation in the record. (Doc. 1). His report was also provided in discovery and that report is also contained in the record. (Doc. 14).

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{¶4} At that time Trooper Beynon called for a canine unit to arrive on

scene. Shortly thereafter Trooper Bryner2 arrived to assist with officer safety, and

then Deputy Roberts arrived with the canine.

{¶5} Deputy Roberts advised Trooper Beynon that the canine “alert[ed]” on

the vehicle. Subsequently Trooper Beynon went back to the vehicle in question

and asked the right rear passenger, Eric Dear, to step out. Dear was seated behind

the front passenger, to the right of Voll in the backseat. When Dear stepped out of

the vehicle, Trooper Bryner informed Trooper Beynon that there was what

appeared to be a glass “crack” pipe in plain view to the left of where Dear was

seated on the backseat of the vehicle. According to Trooper Bryner, the pipe was

to the left of Dear’s seatbelt receiver approximately six to twelve inches to the

right of Voll.

{¶6} Trooper Beynon subsequently removed Voll from the vehicle.

Trooper Beynon stated that Voll appeared nervous, adding he observed that the

artery in Voll’s neck was pumping very fast consistent with an elevated heart rate.

Trooper Beynon asked Voll about the crack pipe that was lying in plain view and

she said she had no knowledge of it being in the vehicle.

2 Trooper Bryner’s name was misspelled in the official transcript provided to this court. In the transcript, Trooper Bryner’s name is spelled “Briner.” Voll thus also misspells Trooper Bryner’s name in her brief to this court. Trooper Bryner’s name was also disclosed in discovery and is contained elsewhere in the record. (Doc. 14).

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{¶7} Ultimately Voll was charged with possession of drug paraphernalia in

violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree. Voll pled

not guilty and the case proceeded to a bench trial on January 9, 2012.

{¶8} At trial the State called Troopers Beynon and Bryner who gave

testimony regarding the stop. Trooper Beynon also identified the pipe itself and

the lab results finding that residue in the pipe was crack. Both the pipe and the lab

results were entered into evidence. The State then rested. After the State rested

and the defense’s Rule 29 motion for acquittal was denied, Voll took the stand in

her own defense, claiming that she had no knowledge of the crack pipe, that she

had never used crack, and that the crack pipe was not hers. The defense then

rested its case. The court then found Voll guilty of possession of drug

paraphernalia.

{¶9} Immediately after the bench trial the case proceeded to sentencing.

Voll was sentenced to 30 days in jail and was ordered to pay a $250 fine. All of

the jail time and $100 of the fine were suspended on the conditions that Voll not

violate any laws, pay her court costs and fines, and complete a drug/alcohol

evaluation at a court approved facility and abide by all counseling

recommendations for one year. (Doc. 25). A judgment entry memorializing these

terms was filed that same day, January 9, 2012. (Id.)

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{¶10} It is from this judgment that Voll appeals, asserting the following

assignments of error for our review.

ASSIGNMENT OF ERROR 1 THERE WAS INSUFFICIENT EVIDENCE FOR THE TRIAL COURT TO FIND DEFENDANT GUILTY OF POSSESSION OF DRUG PARAPHERNALIA.

ASSIGNMENT OF ERROR 2 THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶11} For ease of discussion, we elect to address the assignments of error

together.

First and Second Assignments of Error

{¶12} In Voll’s first and second assignments of error she argues that there

was insufficient evidence to support her conviction for possession of drug

paraphernalia and that her conviction for possession of drug paraphernalia was

against the manifest weight of the evidence. Specifically Voll argues that the State

did not establish that Voll was in constructive possession of the crack pipe found

near her in the backseat of the vehicle.

{¶13} The Supreme Court of Ohio has “carefully distinguished the terms

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and

‘legal sufficiency’ are ‘both quantitatively and qualitatively’ different. Eastley v.

Volkman, --- Ohio St.3d ---,

, quoting State v. Thompkins,

(1997), paragraph two of the syllabus.

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{¶14} The Ohio Supreme Court has set forth the sufficiency of the evidence

test as follows:

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 and 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,

(1991), at syllabus, superseded by state

constitutional amendment on other grounds as stated in State v. Smith,

(1997);

.

{¶15} Unlike our review of the sufficiency of the evidence, an appellate

court’s function when reviewing the weight of the evidence is to determine

whether the greater amount of credible evidence supports the verdict.

; State v. Thompkins,

(1997). In reviewing

whether the trial court’s judgment was against the weight of the evidence, the

appellate court sits as a “thirteenth juror” and examines the conflicting testimony.

In doing so, this Court must review the entire record, weigh the evidence and

all of the reasonable inferences, consider the credibility of witnesses, and

determine whether in resolving conflicts in the evidence, the factfinder “clearly

lost its way and created such a manifest miscarriage of justice that the conviction

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must be reversed and a new trial ordered. State v. Andrews, 3d Dist. No. 1-05-70,

, citing State v. Martin,

(1983);

Thompkins,

.

{¶16} To prove the charge of possession of drug paraphernalia, the State

had to show that Voll “knowingly use[d], or possess[ed] with purpose to use, drug

paraphernalia.” R.C. 2925.14(C)(1).

{¶17} The Revised Code defines “possession” as “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).

{¶18} Possession may be actual or constructive. State v. Haynes,

(1971). To prove constructive possession, the State must demonstrate

that Voll was able to exercise dominion or control over the item, even though the

item may not be within her immediate physical possession. State v. Wolery,

(1976); see also, State v. Alexander, 8th Dist. No. 90509, 2009-

Ohio-597, at ¶ 23 citing State v. Hankerson,

(1982), syllabus;

State v. Messer,

(9th Dist. 1995). Ownership need not be

proven to establish constructive possession. State v. Fry, 9th Dist. No. 23211,

, citing State v. Mann,

(8th

Dist. 1993). Furthermore, “[r]eadily usable drugs in close proximity to an accused

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may constitute sufficient circumstantial evidence to support a finding of

constructive possession.” State v. Ruby, 2nd Dist. Nos. 02CA6, 02CA22, 2002-

Ohio-5381, ¶ 36; see also, State v. Spurlock, 3d Dist. No. 5-03-11, 2003-Ohio-

6006, at ¶ 18.

{¶19} The State may show constructive possession by circumstantial

evidence alone. See State v. Trembly,

(2000). Absent

a defendant's admission, the surrounding facts and circumstances, including the

defendant's actions, are evidence that the trier of fact can consider in determining

whether the defendant had constructive possession. See State v. Norman, 10th

Dist. No. 03AP–298,

; State v. Baker, 10th Dist. No. 02AP–

627,

, ¶23. Inherent in a finding of constructive possession is the

determination that the defendant had knowledge of the item purportedly

possessed. See State v. Alexander, 8th Dist. No. 90509,

.

{¶20} Voll maintains that the State did not prove she “possessed” the drug

paraphernalia. Specifically she contends that the State failed to prove possession

because the State did not show Voll was in possession of the crack pipe.

{¶21} At trial, the State first called Trooper Beynon to the stand to prove

Voll possessed drug paraphernalia. Beynon testified that when he removed Eric

Dear from the backseat of the vehicle during the stop (Dear was the passenger

seated in the backseat to the right of Voll) Trooper Bryner informed Trooper

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Beynon that there was what appeared to be a glass crack pipe in plain view on the

backseat. (Tr. at 10). Trooper Beynon testified that the pipe did, in fact, test

positive for “crack” and the lab results illustrating this were entered into evidence

along with the pipe itself. (Tr. at 13).

{¶22} Trooper Beynon testified that the pipe was to Voll’s right in the

backseat of the vehicle, in plain view. (Tr. at 10-11). According to Beynon,

during his interaction with Voll, Voll appeared very nervous and the artery in her

neck was pumping very fast indicating an accelerated heart rate. (Tr. at 15).

Trooper Beynon testified that Voll denied any knowledge of the pipe. (Tr. at 16).

{¶23} The State then called Trooper Bryner to testify at the trial. Trooper

Bryner testified that he first observed the glass pipe when Eric Dear was removed

from the vehicle. (Tr. at 22). Trooper Bryner testified that three-quarters of the

pipe was in plain view. (Tr. at 23). Further, Trooper Bryner testified that the pipe

was six to twelve inches to Voll’s right, on the outside of Dear’s seatbelt receiver,

and that Voll would have been able to see it “plain as day.” (Tr. at 24).

{¶24} Based upon these facts and circumstances, we find that there was

sufficient circumstantial evidence for the court to conclude that Voll

constructively possessed the crack pipe, and therefore, was in possession of drug

paraphernalia. Accordingly Voll’s first assignment error is, therefore, overruled.

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{¶25} Having already established that there was sufficient evidence to

convict Voll, we now turn to look at whether the greater amount of credible

evidence warranted conviction. After the State rested Voll testified in her own

defense, arguing that she had no knowledge of the crack pipe, and that she had not

even seen the pipe until Trooper Bryner pointed it out.

{¶26} On appeal Voll cites State v. Cooper, 3d Dist. No. 9-06-49, 2007-

Ohio-4937, for a fact pattern wherein we overturned a conviction for possession.

This case is factually distinguishable from Cooper. In Cooper, there was no

evidence presented that the defendant had any knowledge that drugs were located

in the pocket behind the seat in the car he was in or that the defendant was capable

of exercising dominion over the drugs. Cooper at ¶ 29. Here there was testimony

provided by Trooper Bryner that the pipe would have been visible from Voll’s

perspective “plain as day” and that the pipe was only six to twelve inches from her

making it readily accessible to her. Thus not only could she exercise dominion

over it but a factfinder could infer her knowledge of it by its apparent visibility.

{¶27} Finally we note that Voll testified at trial maintaining her innocence

and her ignorance of the pipe close in proximity to her in plain view. However, it

is well within the province of the trier-of-fact to determine Voll’s credibility in

making those statements including the prerogative to find Voll’s denials not to be

truthful. Under these circumstances we cannot find that the factfinder “clearly lost

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its way” in convicting Voll of possession of drug paraphernalia or that Voll’s

conviction was a “miscarriage of justice.” Accordingly, Voll’s second assignment

of error is overruled.

{¶28} For the foregoing reasons Voll’s assignments of error are overruled

and the judgment of the Marysville Municipal Court is affirmed.

Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr

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