[Cite as State v. Greene,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : William B. Hoffman, P.J. : Sheila G. Farmer, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 2012 AP 02 0018 : : COREY GREENE : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Tuscarawas County Court of Common Pleas Case No. 2011 CR 07 0196

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: November 29, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RYAN STYER RODNEY A. BACA Tuscarawas County Prosecutor Schnars, Baca & Infantino, LLC 125 East High Avenue 610 Market Avenue North New Philadelphia, Ohio 44663 Canton, Ohio 44702 [Cite as State v. Greene,

.]

Edwards, J.

{¶1} Defendant-appellant, Corey Greene, appeals his conviction and sentence

from the Tuscarawas County Court of Common Pleas on one count of aggravated

possession of drugs. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On July 22, 2011, the Tuscarawas Count Grand Jury indicted appellant on

one count of aggravated possession of drugs (Oxycodone) in violation of R.C.

2925.11(A) and (C)(1)(c), a felony of the second degree. At his arraignment on October

7, 2011, appellant entered a plea of not guilty to the charge.

{¶3} Subsequently, a jury trial commenced on February 7, 2012. The following

testimony was adduced at trial.

{¶4} On March 9, 2011, Dal Frais, Bobbi Scarborough and appellant were in a

rental car that was stopped for speeding. While Frais, who has prior felony convictions

including one involving marijuana, was in the front passenger seat, Scarborough was

driving and appellant was in the back seat behind Frais. Frais, who is friends with

Scarborough, testified that he was going to drop her off at her home in Columbia, South

Carolina after she had visited with him for a couple of days in Toledo. Frais testified that

because he had no license, a friend, Brittany Brown, rented the rental car for him.

Brown, Frais and Scarborough all went together to rent the car.

{¶5} According to Frais, appellant asked if he could catch a ride with them and

be dropped off in West Virginia so that he could meet with one of his friends. Frais

testified that appellant had gone to West Virginia on numerous times and came back

bragging about how much money he had made and flaunting jewelry. Frais testified that Tuscarawas County App. Case No. 2012 AP 02 0018 3

appellant had shown him blue pills, which were Percocets, while they were hanging out

in Toledo and indicated that that was how he made his money. According to Frais, he

did not pay appellant to go to West Virginia. Appellant paid for the gas.

{¶6} Frais testified that appellant had a chance to be in the car by himself when

he got into the front seat to program the navigation system during a stop for gas and

then, after they stopped at another gas station, when appellant checked on or installed

a fuse.

{¶7} Frais also testified that Trooper Beach, after stopping the rental car, asked

them to step out of the car so that he could search them because he smelled marijuana.

According to Frais, at the time no marijuana was being burned. Frais testified that he

had smoked one or two blunts (marijuana) with appellant earlier. The following

testimony was adduced when Frais was asked when it was first indicated that there

were pills tucked up under the dash:

{¶8} “MR. FRAIS: When the officer put me and Corey in the car together.

{¶9} “MR. STYER: Uh huh.

{¶10} “MR. FRAIS: That’s when I initially knew something was wrong because

he was mumbling and I heard him mumble, ‘I hope my tuck spot is good.’

{¶11} “MR. STYER: Okay. Did you know what he meant by that?

{¶12} “MR. FRAIS: Right when he said that then I knew that he had, when you

say tuck spot that mean he had something tucked. So, then when I axed (sic) him that

he like, he hope his tuck spot is cool and after a few seconds later, that’s when the

Trooper had something in his hand he said he found it and he’s , and all of a sudden he

shut down and he said ‘I’m not saying nothing’ and he put his head down. When he put Tuscarawas County App. Case No. 2012 AP 02 0018 4

his head down, that’s when the State Trooper came to us and opened up the car doors

and he separated all of us.

{¶13} “I was in the first car, he was in the second and Bobbi I guess was in the

last car and he came to the car and axed (sic) did I know anything about this? I told him

‘no.’ He closed my door. You know, I turned around cause I was in cuffs, I could see he

went to the cars and he come back. He came back to my car and opened my car door

and he axed (sic) me, he said ‘where’s the Marijuana?’ And I told him, ‘what

Marijuana?’ The other State Trooper came and walked up and said ‘cut it out’ ‘cut the

bs out, Corey said you have Marijuana in your drawers, stuffed your butt, get it out of

there before we charge you with something else.’ I gave it up and he said, he also said,

‘the pills are yours.’ I told him ‘no, those are not mine’ and he closed the door.”

Transcript at 116-117.

{¶14} On cross-examination, Frais testified that, during the ride, appellant never

got into the driver’s seat and never got into the front passenger seat. He testified that

he never saw appellant with pills on the day in question and that appellant never told

him that he had a bag of pills. Frais admitted that, in his statement to police, he never

mentioned appellant talking about his “tuck spot.” He also admitted that when he was

stopped by the Trooper, he did not tell the Trooper right away that he had marijuana in

his possession. At the time, Frais had $729.00 in cash on his person and had told the

Trooper that he did not have a job. He testified that he told the Trooper that women

gave him money. Frais, with respect to the facts of this case, was charged with

aggravated possession of drugs, a felony of the second degree, but he testified that, in

exchange for his testimony, was facing a felony of the fifth degree and faced a possible Tuscarawas County App. Case No. 2012 AP 02 0018 5

sentence of six to twelve months rather than two to eight years. Frais testified that he

was hoping to get probation. He admitted that he had violated his probation in the past

and had gone to prison. Frais further admitted that he was upset after appellant told the

Trooper that Frais had marijuana stuck down his pants and was angry that appellant

had snitched on him.

{¶15} Jeffrey Turnau, a lab technician from the State Highway Patrol’s crime lab,

testified that he tested the pills that were submitted by Trooper Beach and that there

were 475 light blue, 30 milligram tablets of Oxycodone, a schedule II controlled

substance. He also testified that there were a number of brand names associated with

Oxycodone, including Roxycodone, and that another brand name was Percocet.

Turnau further testified that the maximum daily dosage of Oxycodone is 90 milligrams

and that the bulk amount is five times the maximum daily dosage, or 15 tablets in this

case.

{¶16} The last witness to testify at trial was Trooper Roy Beach, who is with the

Ohio State Highway Patrol. Trooper Beach testified that he was working the midnight

shift on Interstate 77 near Dover on March 9, 2011, when he stopped the vehicle

appellant was in for speeding at or about 12:03 a.m. At the time, appellant was in the

back passenger seat while Frais was in the front passenger seat. The vehicle was

traveling 77 miles per hour in a 65 mile per hour zone. When he approached the

vehicle, the Trooper noticed an odor of raw marijuana coming from the same. Trooper

Beach then called for back-up assistance. When back-up assistance arrived, he had all

three people exit the vehicle and searched them. All three were placed in separate

vehicles. During a search of the stopped vehicle, Trooper Beach located a large baggie Tuscarawas County App. Case No. 2012 AP 02 0018 6

containing pills. The following testimony was adduced when he was asked how he

identified or found the pills:

{¶17} “TROOPER BEACH: Um, while searching the vehicle, on the passenger

side, at the right front door of the vehicle, I got down on my knees and I shined my

flashlight along the floorboard and the underneath, the underpart of the dash

compartment, the glove box and up underneath there’s a plastic, two pieces of plastic

come together and again, this was a brand new rental car, I believe a 2011 Hyundai if

I’m not mistak(sic)-brand new, very excellent condition. But where the two plastic

pieces came together, there was one tab that was popped out which obviously, to me, I

felt that maybe it had been tampered with. Normally from a factory, a car dealer’s

gonna put it together and make sure everything’s squared away, looking nice and neat,

especially the interior. Um, when I noticed the tab, um and-and the plastic just slightly

offset, I reached my and up um, up in I guess behind-my hand went behind the plastic

and I felt a bag of-of something at the time. I pulled it out and that was the bag of pills.”

Transcript at 170-171.

{¶18} He testified that eight smaller bags of pills were contained in one big bag.

{¶19} During questioning the occupants of the car, it was brought to Trooper

Beach’s attention that Frais had marijuana. While Frais was being patted down, he

never mentioned the marijuana inside of his pants. The Trooper then went back to

speak with Frais again and Frais admitted that he had marijuana and pulled a small

baggie out of his pants. A pack of rolling papers was found in his wallet.

{¶20} Trooper Beach read appellant’s handwritten statement to police into the

record. Appellant, in his statement which was admitted as Exhibit C, stated as follows: Tuscarawas County App. Case No. 2012 AP 02 0018 7

{¶21} “I, Corey Greene was asked to ride with Dal Frais to drop his girlfriend off

in South Carolina. I told him I would, and he told me he was gonna look out (give me

money) for me cus (sic) I would go. He told me we had to make a stop in West Virginia

cause that was on the way there. He didn’t show me, but he told me he had some pills

to drop off and after he did that, we could go to South Carolina and party. They came

and got me from my house on Garden Ridge cause I had to leave my car with my girl.

So they came got me about 9 something off of Garden Ridge. We went to a gas station

on Renolds Rd. got chips, pop, gas and a fuse for the lighter then we got on 80/90 turn

– pike. After that I feel (sic) a sleep in the back seat and woke up to gettin (sic) pulled

over by the State Troopers. And while we were pulled over Mr. Frais kept trying to

reach down by his feet and move those pills. I asked him why he was moving and that’s

when he told me he was trying to tuck his pills better. So I guess the officer smelled

marijuana which sent a red flag up so he reached the car and found pills & weed.

Theres (sic) nothing in that car thats (sic) mines (sic) but whats (sic) in the back seat!

I’m willing to testify those were his pills.”

{¶22} On cross-examination, Trooper Beach testified that if Frais had told him

that appellant had said “I hope that my tuck spot is good,” it would have been in his

written report. There was no such statement in his written report. He further testified

that appellant had told a Deputy that Frais had marijuana in his pants and that Frais got

very upset with appellant because he had been “ratted out.” Transcript at 198. Trooper

Beach also testified that he never saw appellant with any pills on his person or in his

clothing or possessions. According to Trooper Beach, he never saw appellant leave the

back seat or make any movements towards the front of the car or the front dash. He Tuscarawas County App. Case No. 2012 AP 02 0018 8

testified that Frais was seated closest to the drugs and, from his seat, could have

reached in and accessed the pills. The Trooper also testified that, contrary to Frais’

testimony, appellant and Frais were never in the same cruiser together.

{¶23} At the conclusion of the evidence and the end of deliberations, the jury, on

February 8, 2012, found appellant guilty of aggravated possession of drugs, a felony of

the second degree. Pursuant to a Judgment Entry filed on February 8, 2012, appellant

was sentenced to five years in prison and ordered to pay a fine in the amount of

$7,500.00. However, the fine was suspended due to appellant’s indigency. In addition,

appellant’s license was suspended for a period of five years.

{¶24} Appellant now raises the following assignments of error on appeal:

{¶25} “I. THE TRIAL COURT ERRED WHEN IT ABUSED ITS DISCRETION

WHEN IT ALLOWED EVIDENCE OF ALLEGED SIMILAR ACTS TO BE PRESENTED

TO THE JURY IN VIOLATION OF EVIDENCE RULE 404.

{¶26} “II. THE EVIDENCE IS INSUFFICIENT TO FIND THE APPELLANT

GUILTY OF AGGRAVATED POSSESSION OF DRUGS AND HIS CONVICTION WAS

AGAINST THE MANIFEST WEIGHT OF EVIDENCE.”

I

{¶27} Appellant, in his first assignment of error, argues that the trial court

abused its discretion in allowing “other acts” evidence under Evid.R. 404(B).

{¶28} Initially, we note the admission or exclusion of relevant evidence lies

within the sound discretion of the trial court. State v. Sage,

,

(1987). The trial court’s admission of other acts evidence is reviewed under

an abuse of discretion standard. State v. Morris,

,

, Tuscarawas County App. Case No. 2012 AP 02 0018 9

. In order to find an abuse of discretion, we must find that the trial

court’s decision was arbitrary, unconscionable, or unreasonable. Blakemore v.

Blakemore,

,

(1983).

{¶29} As a general rule, evidence of previous or subsequent acts, wholly

independent of the charges for which the accused is on trial, is inadmissible. State v.

Hector,

,

(1969). Such evidence cannot be admitted

for the purpose of establishing the defendant acted in conformity with this bad behavior.

State v. Elliot,

,

(3rd Dist. 1993).

{¶30} Evid. R. 404(B) reads, in relevant part, as follows:

{¶31} “(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.”

{¶32} R.C. 2945.59 provides:

{¶33} “In any criminal case in which the defendant's motive or intent, the

absence of mistake or accident on his part, or the defendant's scheme, plan, or system

in doing an act is material, any acts of the defendant which tend to show his motive or

intent, the absence of mistake or accident on his part, or the defendant's scheme, plan,

or system in doing the act in question may be proved, whether they are

contemporaneous with or prior or subsequent thereto, notwithstanding that such proof

may show or tend to show the commission of another crime by the defendant.” Tuscarawas County App. Case No. 2012 AP 02 0018 10

{¶34} Other acts evidence demonstrating a modus operandi, scheme, plan or

system evincing a “behavioral fingerprint” is limited to the purpose of establishing the

perpetrator's identity. See, State v. Jamison,

,

(1990); State v. Smith,

,

; State v. Coleman,

,

(1988). As noted by the Court in Jamison, the other

acts must form “a unique, identifiable plan of criminal activity, sufficiently probative as to

identify to warrant their admission.” Id. at 183.

{¶35} It must be remembered “because R.C. 2945.59 and Evid.R. 404(B) codify

an exception to the common law with respect to other acts of wrongdoing, they must be

construed against admissibility, and the standard for determining admissibility of such

evidence is strict.” State v. Broom,

,

(1988);

paragraph one of the syllabus.1 As cautioned by the Ohio Supreme Court in State v.

Lowe,

,

(1994), “... we therefore must be careful.. to

recognize the distinction between evidence which shows that a defendant is the type of

person who might commit a particular crime and evidence which shows that a

defendant is the person who committed a particular crime.”

. Evidence to

prove the ‘type’ of person the defendant is to show he acted in conformity therewith is

barred by Evid.R. 404(B).

{¶36} In the case sub judice, appellant specifically takes issue with the other

acts evidence offered by appellee, over objection, through the testimony of Dal Frais.

As is stated above, Frais, over objection, testified that appellant indicated that he

1 The Ohio Supreme Court found Evid. R. 404(B) controls over R.C. 2945.49 since it was adopted subsequent to the statute in

. Tuscarawas County App. Case No. 2012 AP 02 0018 11

wanted to be dropped off in West Virginia. Frais further testified that he knew that

appellant made frequent trips to West Virginia and that appellant, after such trips,

bragged about the amount of money that he made. Frais also testified that appellant

had shown him blue Percocet pills while they were hanging out in Toledo and indicated

that he made money selling the same. After Frais’ testimony, the trial court gave a

limiting instruction stating that “the evidence of a prior criminal act may not be

considered as a basis for an inference that the Defendant acted in conformity with that

prior conduct on the date in question for the case presented today. It may be

considered for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity or absence of mistake or accident.” Transcript at 137.

Appellant now contends that the trial court abused its discretion in admitting such “other

acts” evidence.

{¶37} In turn, appellee argues that such testimony was properly admitted into

evidence in order to show appellant's modus operandi for the purpose of establishing

that the pills belonged to appellant. As is stated above, other acts may prove identity by

establishing a modus operandi applicable to the crime with which a defendant is

charged.

{¶38} We find that the trial court abused its discretion in admitting Dal Frais’

testimony because the acts testified to by Dal Frais do not establish a common scheme

or plan. Dal Frais’ testimony does not establish a “behavioral footprint.” There is

nothing particularly unique and identifiable about selling blue Percocet pills in West

Virginia. As noted by appellant, there was no testimony that appellant used a rental car

to transport drugs, that he put the drugs underneath the dash of the passenger seat or Tuscarawas County App. Case No. 2012 AP 02 0018 12

that he took the particular route from Toledo to West Virginia on a regular basis. We

concur with appellant that “just sitting there saying well I know he goes down there a lot

and I know he takes pill,….that’s not specific enough,…” Transcript at 99.

{¶39} Moreover, based on the lack of overwhelming evidence of appellant’s

guilt, we cannot say that that appellant was not prejudiced by the admission of the other

acts evidence. Pursuant to Crim.R. 52(A), “any error, defect, irregularity, or variance

which does not affect substantial rights shall be disregarded.” To find an error harmless,

an appellate court must be able to declare a belief that the error was harmless beyond a

reasonable doubt. State v. Lytle,

,

(1976). An

appellate court may overlook an error where the other admissible evidence, standing

alone, constitutes “overwhelming” proof of guilt. State v. Williams,

,

(1983), paragraph six of the syllabus. “Where there is no reasonable

possibility that unlawful testimony contributed to a conviction, the error is harmless and

therefore will not be grounds for reversal.” State v. Brown,

,

1992–Ohio–61,

.

{¶40} As is stated above, there was testimony at trial that both marijuana and

money were found on Frais, who has prior convictions, while nothing was found on

appellant. The pills were located in an area in front of where Frais was seated while,

during the trip, appellant was seated in the back seat of the vehicle. Frais’ testimony

about appellant’s alleged trips to West Virginia clearly was prejudicial to appellant since

it tied appellant to the pills. We find that there was a reasonable possibility that such

testimony contributed to appellant’s conviction and such error was not harmless beyond

a reasonable doubt. In short, we find that the probative value of such “other acts” Tuscarawas County App. Case No. 2012 AP 02 0018 13

evidence was outweighed by the prejudice and that the trial court abused its discretion

in admitting such testimony.

{¶41} Appellant’s first assignment of error is, therefore, sustained.

II

{¶42} Appellant, in his second assignment of error, argues that his conviction for

aggravated possession of drugs is against the sufficiency and manifest weight of the

evidence. Based on our disposition of appellant’s first assignment of error, we find the

portion of this assignment of error challenging the manifest weight of the evidence to be

premature.

{¶43} In determining whether a trial court erred in overruling an appellant's

motion for judgment of acquittal, the reviewing court focuses on the sufficiency of the

evidence. See, e.g., State v. Carter,

, 1995–Ohio–104,

; State v. Jenks,

,

(1991).

{¶44} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction.

“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.” Jenks, paragraph two of the

syllabus, following Jackson v. Virginia,

,

,

(1979).

{¶45} Appellant was convicted of aggravated possession of drugs in violation of

R.C. R.C. 2925.11(A) and (C)(1)(c). R.C. 2925.11 states, in relevant part, as follows:

“(A) No person shall knowingly obtain, possess, or use a controlled substance.” The Tuscarawas County App. Case No. 2012 AP 02 0018 14

culpable mental state of “knowingly” is defined as follows: “A person acts knowingly,

regardless of his purpose, when he is aware that his conduct will probably cause a

certain result or will probably be of a certain nature. A person has knowledge of

circumstances when he is aware that such circumstances probably exist.” R.C.

2901.22(B).

{¶46} R.C. 2925.01(K) defines possession as follows: “‘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. 2901.21 provides the requirements

for criminal liability and provides that possession is a “voluntary act if the possessor

knowingly procured or received the thing possessed, or was aware of the possessor's

control of the thing possessed for sufficient time to have ended possession.” R.C.

2901.21(D)(1).

{¶47} Possession may be actual or constructive. State v. Hankerson,

,

(1982); syllabus. To establish constructive possession, the

evidence must prove that the defendant was able to exercise dominion and control over

the contraband. State v. Wolery,

,

(1976). Dominion

and control may be proven by circumstantial evidence alone. State v. Trembly,

,

(8th Dist. 2000). Circumstantial evidence that the

defendant was located in very close proximity to readily usable drugs may show

constructive possession. State v. Barr,

,

(8th

Dist. 1993); State v. Morales, 5th Dist. No. 2004 CA 68,

; State v.

Moses, 5th Dist. No. 2003CA00384,

. Ownership of the drugs need Tuscarawas County App. Case No. 2012 AP 02 0018 15

not be established for constructive possession. State v. Smith, 9th Dist. No. 20885,

, ¶ 13, citing State v. Mann,

,

(8th Dist. 1993). Furthermore, possession may be individual or joint. Wolery,

.

{¶48} Appellant, in support of his argument, notes that he was not present when

the vehicle in question was rented, and that he was patted down without any illegal

substance or money found on his person whereas marijuana and money were found on

Frais. He further notes that while Frais testified that he and appellant were put in the

same cruiser and that, while in the back of the cruiser, appellant mumbled to him that he

hoped his “tuck spot” was good, Trooper Beach testified that they were never placed in

the same cruiser. Appellant also contends that he did not have actual or constructive

possession of the drugs found in the car. He notes that the drugs were found under the

dashboard in front of Frais and not in the area of control of appellant. Moreover,

appellant emphasizes that while he immediately told Trooper Beach about the

marijuana on Frais’ person, Frais never mentioned the marijuana.

{¶49} However, we find that any rational trier of fact could have found that

appellant committed the offense of aggravated possession of drugs and that there was

sufficient evidence to support his conviction. Based on the testimony of Frais adduced

at trial, even excluding the testimony that we held was improperly admitted, the jury

could have found that appellant had access to the area under the dash on at least two

occasions, asked to be dropped off in West Virginia to meet a friend and said, while the

trooper was searching the car, that he hoped his “tuck spot” was good. Tuscarawas County App. Case No. 2012 AP 02 0018 16

{¶50} Based upon the above evidence, we find that appellant’s conviction was

not based upon insufficient evidence.

{¶51} Appellant’s second assignment of error is, therefore, overruled.

{¶52} Accordingly, the judgment of the Tuscarawas County Court of Common

Pleas is reversed and this matter is remanded for retrial.

By: Edwards, J.

Farmer, J. concurs and

Hoffman, P.J. concurs separately

______________________________

______________________________

______________________________

JUDGES

JAE/d0828 Tuscarawas County App. Case No. 2012 AP 02 0018 17

Hoffman, P.J., concurring

{¶53} I concur in the majority’s analysis and disposition of Appellant’s first

assignment of error. I write separately with respect thereto to state, even if the

evidence had been sufficient to establish a common scheme or plan; i.e., a modus

operandi sufficient to establish a behavioral fingerprint as argued by the state of Ohio,

such evidence would still be inadmissible because the identity of the Appellant was not

at issue.

{¶54} I further concur in the majority’s analysis and disposition of Appellant’s

second assignment of error.

________________________________ HON. WILLIAM B. HOFFMAN [Cite as State v. Greene,

.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : COREY GREENE : : Defendant-Appellant : CASE NO. 2012 AP 02 0018

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Tuscarawas County Court of Common Pleas is reversed and this

matter is remanded to the trial court for retrial. Costs assessed to appellee.

_________________________________

_________________________________

_________________________________

JUDGES