[Cite as State v. Wilson,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102231

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DANTOINE WILSON

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-585444-A

BEFORE: Celebrezze, A.J., Keough, J., and McCormack, J.

RELEASED AND JOURNALIZED: December 3, 2015 ATTORNEY FOR APPELLANT

David L. Doughten David L. Doughten Co., L.P.A. 4403 St. Clair Avenue Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Ryan J. Bokoch Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., A.J.:

{¶1} Defendant-appellant, Dantoine Wilson (“Wilson”), brings this appeal

challenging his convictions for drug trafficking and drug possession. Specifically,

Wilson argues that: (1) the evidence was insufficient to support his convictions, and (2)

his convictions are against the manifest weight of the evidence. After a thorough review

of the record and law, this court affirms.

I. Factual and Procedural History

{¶2} The Cuyahoga County Grand Jury returned a multiple count indictment

charging Wilson with: (1) trafficking in drugs — crack cocaine — R.C. 2925.03(A)(2),

(2) drug possession — crack cocaine — R.C. 2925.11(A), (3) trafficking in drugs —

heroin— R.C. 2925.03(A)(2), (4) drug possession — heroin — R.C. 2925.11(A), and (5)

tampering with evidence, R.C. 2921.12(A)(1). Wilson pled not guilty to the indictment.

{¶3} Wilson waived his right to a jury trial and proceeded to be tried before the

court. Detectives Duane Funk and Brent Lavinder of the Middleburg Heights Police

Department testified during the bench trial. Furthermore, Samuel Troyer, a Bureau of

Criminal Investigation (“BCI”) DNA specialist, provided expert testimony on behalf of

the state of Ohio. The trial court overruled the defense’s motions for acquittal — both at

the close of the state’s case and after the defense rested. {¶4} The trial court convicted Wilson of Counts 1, 2, 3, and 4, and found Wilson

not guilty of Count 5. After merging Counts 1 and 2 and Counts 3 and 4, the trial court

sentenced Wilson to 24 months in prison: 12 months for Count 1 and 24 months for

Count 3. The trial court ordered the sentences to run concurrently. Furthermore, the

trial court ordered Wilson to serve 3 years of postrelease control.

{¶5} Wilson filed the instant appeal assigning two errors for review:

I. The evidence is insufficient to sustain convictions of drug trafficking and drug possession of R.C. 2925.03 and R.C. 2925.11.

II. The verdicts of drug possession and drug trafficking are against the manifest weight of the evidence.

II. Law and Analysis

A. Sufficiency

{¶6} Wilson first argues his drug trafficking and drug possession convictions are

not supported by sufficient evidence. Specifically, Wilson argues that the DNA evidence

found on a plastic bag containing crack cocaine only establishes that he was in the hotel

room, and is insufficient to sustain the convictions.

{¶7} The state has the burden of proving each element of a charged offense. A

claim that a conviction is unsupported by sufficient evidence tests whether the state has

met its burden of production at trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048,

, citing State v. Thompkins,

,

(1997). This court must determine “‘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. Leonard,

,

,

, ¶ 77, quoting State v. Jenks,

,

(1991), paragraph two of the syllabus. In a sufficiency inquiry, an

appellate court does not assess whether the state’s evidence is to be believed but whether,

if believed, the evidence admitted at trial supported the conviction. State v. Starks, 8th

Dist. Cuyahoga No. 91682,

, ¶ 25.

1. Possession

{¶8} Wilson argues that the state failed to prove the elements of possession beyond

a reasonable doubt. Specifically, Wilson argues that there is no evidence that he ever

had control over the drugs recovered from the hotel room. In support of his argument,

Wilson claims that: (1) he did not rent the hotel room, (2) he had no drugs,

paraphernalia, or money in his possession when the police searched him, and (3) at least

five other occupants had been present in the hotel room, and many, if not all, of the other

occupants had a “history of drug involvement.”

{¶9} R.C. 2925.11 defines possession of drugs: “no person shall knowingly

obtain, possess, or use a controlled substance or a controlled substance analog.”

{¶10} Possession can be actual or constructive. State v. Brown, 8th Dist.

Cuyahoga No. 87932,

. Actual possession entails ownership or

physical control, whereas constructive possession is defined as knowingly exercising dominion and control over an object, even though that object may not be within one’s

immediate physical possession. State v. Hankerson,

,

(1982). The state may show constructive possession — that is dominion and

control — of drugs solely by circumstantial evidence. State v. Trembly,

,

(8th Dist. 2000).

{¶11} In State v. Robinson, this court explained:

Although the mere presence of a person at the residence in which

contraband is discovered is not enough to support the element of

possession, if the evidence demonstrates defendant was able to exercise

dominion or control over the illegal objects, defendant can be convicted of

possession. State v. Wolery (1976),

,

;

State v. Haynes (1971),

,

. Moreover,

where a sizable amount of readily usable drugs is in close proximity to a

defendant, this constitutes circumstantial evidence to support the conclusion

that the defendant was in constructive possession of the drugs. State v.

Benson (Dec. 24, 1992), 8th Dist. No. 61545,

;

State v. Pruitt,

,

(8th Dist. 1984).

State v. Robinson, 8th Dist. Cuyahoga No. 90731,

, ¶ 86. Furthermore,

the Ohio Supreme Court has held that “ knowledge of illegal goods on one’s property is

sufficient to show constructive possession,” as long as the person “is conscious of the presence of the object.” State v. Santiago, 8th Dist. Cuyahoga No. 95333,

, ¶ 11, citing Hankerson.

{¶12} In the instant matter, the drugs were recovered from the hotel room’s ceiling

light — they were not found on Wilson’s person. Therefore, the state must demonstrate

that Wilson constructively possessed the drugs found in the plastic bags. In support of

its case, the state presented the testimony of: (1) Detective Duane Funk, (2) Detective

Brent Lavinder, and (3) BCI specialist Samuel Troyer.

{¶13} First, Detective Funk testified that he received a call from a Red Roof Inn

front desk clerk regarding heavy foot traffic in and out of room 211. Detective Funk

testified that the hotel is located in a “high drug area.” The female guest who rented

the hotel room and a male guest approached the responding police officers in the hotel

parking lot. The officers searched the male and female guests and recovered heroin

needles from both of them. The female hotel guest told the responding officers that the

hotel room was now vacant and granted them permission to enter the room. Detective

Funk testified that police were unable to enter the hotel room because the door had been

bolted from the inside. The officers ordered the occupants inside the room to open the

door. Initially, the occupants did not comply with the officers’ order. Detective Funk

testified that “a little over a minute” elapsed before the occupants complied and opened

the door. Furthermore, Detective Funk testified that during this period of time, he heard

multiple people in the bathroom and heard the toilet being flushed. After entering and securing the room, police found four males — including Wilson — inside. The officers

searched the room and the occupants and found: (1) a syringe inside the toilet tank, and

(2) a small scale in one of the dresser drawers. The officers cleared the occupants from

the room and had hotel staff lock down the room.

{¶14} The following day, officers returned to the hotel room after receiving an

anonymous tip advising police to search the hotel room’s ceiling light. Detective Funk

testified that the ceiling light had not been searched the previous day. Detectives Funk

and Lavinder checked the ceiling light and discovered three plastic bags, all packaged

together, including: (1) an exterior plastic bag containing two smaller plastic bags, (2) an

interior bag containing 2.27 grams of crack cocaine, and (3) an interior bag containing

9.24 grams of heroin. Based on his training and experience, Detective Funk testified

that the quantity of crack cocaine and heroin recovered is consistent with drug trafficking,

rather than personal use.

{¶15} Officers were unable to find any useful fingerprints on the plastic bags.

The officers sent the plastic bags to the BCI for DNA analysis. The BCI discovered

Wilson’s DNA on the plastic bags. As a result, Detective Funk conducted a

“confirmation sample” by taking two buccal swabs from Wilson’s mouth and submitting

the swabs to the BCI for comparison.

{¶16} Second, Detective Lavinder testified that he assisted in the search of the

hotel room, pursuant to the anonymous tip. Detective Lavinder testified that when the police came back to the hotel after receiving the anonymous tip, the room remained

“locked down” by the hotel staff. Furthermore, Detective Lavinder testified that all of

the occupants of the hotel room, including Wilson, had local addresses — implying that

none of the occupants were from out of town and had no legitimate need to stay at the

hotel.

{¶17} Third, BCI DNA analyst Samuel Troyer testified on behalf of the state.

The trial court recognized Troyer as an expert in the field of DNA analysis. Troyer

testified that he analyzed the three plastic bags recovered from the hotel room’s ceiling

light. Troyer testified that he compared the DNA from the plastic bags to Wilson’s

DNA from the oral swabs. Troyer testified that there was a mixture of DNA —

indicating the presence of more than one DNA profile — present on the plastic bag

containing crack cocaine, and that Wilson’s DNA was consistent with being in the

mixture. Troyer testified that there was a one in 6,720,000 chance that an unrelated

individual — other than Wilson — placed the DNA on that bag. Furthermore, Troyer

testified regarding his DNA analysis of the exterior plastic bag and the plastic bag

containing heroin. When asked whether Wilson’s DNA was found on either the exterior

plastic bag or the plastic bag containing heroin, Troyer stated “[Wilson] could not be

excluded; however he was not included either, it was an inconclusive finding for those

two items.” Troyer explained that “there was too little DNA present on those items to

really draw a conclusion.” Troyer testified that it could not be determined how or when Wilson’s DNA was deposited on the plastic bags, but that it was more likely that the

DNA was directly deposited — rather than deposited indirectly.

{¶18} Wilson further disputes the means by which his DNA became present on the

plastic bags. In support of his argument, Wilson claims that: (1) DNA is easily

transferrable, (2) it is likely that he did not handle the plastic bags at all, and a more likely

scenario is that his DNA was on the plastic bags because he shook hands with another

occupant who subsequently handled the plastic bags, and (3) there was no testimony

regarding the other contributor found in the complex DNA mixture on the plastic bag

containing crack cocaine.

{¶19} Furthermore, Wilson makes several allegations regarding the officers’

improper handling of evidence. Wilson claims that there was no testimony regarding

police protocol in removing the evidence from the hotel room and transporting it to the

BCI. Wilson contends that: (1) the state must “be able to show the chain of custody,”

and (2) the state “can’t show that the DNA wasn’t contaminated.”

{¶20} In State v. Wharton, 4th Dist. Ross No. 09CA3132,

,

the court addressed the possession element and touch DNA. During a traffic stop, police

recovered three plastic baggies containing crack cocaine from the vehicle. A forensic

scientist testified that each bag had a mixed DNA profile from more than one individual.

Id. at ¶ 14. The defendant could not be excluded as a contributor to the mixed DNA

profiles found on each of the baggies. Id. The expert also testified that for one of the three baggies, there was a one in 23,580,000 chance that an unrelated individual — other

than the defendant — contributed to the DNA profile found on that bag. Id. The court

found that the “testimony on touch DNA bolsters a finding that [defendant] actually

possessed the drugs in the console.” Id. at ¶ 30.

{¶21} Generally, “the state [is] not required to prove a perfect, unbroken chain of

custody.” State v. Keene,

,

(1998). “‘[T]he

state need only establish that it is reasonably certain that substitution, alteration or

tampering did not occur.’” State v. Sims, 8th Dist. Cuyahoga No. 89261,

, quoting State v. Blevins,

,

(10th Dist. 1987).

{¶22} In the instant matter, Detective Funk testified that after discovering the

drugs in the ceiling light and taking photographs of the hotel room and the drugs, “the

items were secured into evidence and eventually transported to the Bureau of Criminal

Investigation.” Furthermore, Troyer testified that he could not speak for the police

regarding how the evidence was collected and transferred to the BCI. However, Troyer

testified that he is confident in the accuracy of his report, and that “[Wilson’s] DNA

wouldn’t just appear on the item because of the way that a police officer handled it.”

Troyer also testified about his familiarity with “secondary DNA” or “transfer DNA.”

Troyer testified that while it is possible that one of the other individuals in the hotel room

transferred Wilson’s DNA onto the plastic bag, “I would say it’s more likely to leave DNA behind by directly handling something than through transfer.” Troyer testified that

“directly handling an item is the most likely way to leave touch DNA.” Wilson points

to no evidence suggesting that the plastic bags were otherwise improperly handled.

{¶23} Wilson repeatedly argues that at least five other occupants had been

present in the hotel room, and that many — if not all — of them had “a history of drug

involvement.” Detective Funk testified that when the police submitted the evidence to

the BCI, “all of the individuals who were involved were listed” in the report, and that

police requested “chemical, fingerprint, [and] DNA analysis.” However, while there

was DNA evidence connecting Wilson to the plastic bags, there was no other evidence

connecting the other occupants to the plastic bags.

{¶24} Furthermore, two or more persons may have joint constructive possession of

the same object. Wharton, 4th Dist. Ross No. 09FA3132,

; see State v.

Mann,

,

(8th Dist. 1993). Therefore, the fact

that other individuals were present in the hotel room is not dispositive of whether Wilson

had constructive possession of the drugs.

{¶25} In Haynes,

,

, the Ohio Supreme Court

held that owning or leasing a property where contraband is found is insufficient by itself

to establish possession — particularly when there are other co-tenants. The Haynes

defendant was absent at the time of the search, and had not occupied the premises for a

week prior to the search — the only evidence connecting the defendant to the drugs was that he was the lessee of the premises.

This court found Chandler to be

distinguishable from Haynes. State v. Chandler, 8th Dist. Cuyahoga Nos. 93664 and

93665,

, ¶ 60.

{¶26} In Chandler, the state presented evidence that although the defendant did not lease the apartment, he lived there with his girlfriend-lessee. Furthermore, “although there were several other men found in the apartment when the search was executed, there was no other evidence connecting them to the apartment or the drugs found on the porch, as there was connecting [defendant] to the apartment and drugs.” Id. at ¶ 61.

{¶27} In State v. Adams, there were 11 other people present with defendant in the

home when police executed the search warrant. State v. Adams, 11th Dist. Ashtabula

No. 2012-A-0025,

. The defendant argued that he did not exercise

exclusive control over the drugs. Id. at ¶ 40. The court noted that there was “nothing

to point to any other individuals controlling or accessing the heroin.” Id. Furthermore,

the court emphasized that “regardless of whether other individuals may have access to the

illegal items, this is not dispositive of whether Adams had constructive possession.” Id.;

see State v. Jackson, 11th Dist. Ashtabula No. 2002-A-0039,

(where other adults are living in a home with access to the area where drugs were

discovered, a defendant can still be found in constructive possession of drugs).

{¶28} In the instant matter, the trial court stated:

there is no requirement that the drugs be in the sole or exclusive possession of Wilson at the time of the offense. All that is required for constructive possession is some measure of dominion or control over the drugs in question beyond mere access to them. The Court finds that the defendant’s DNA on the baggy of cocaine provides this measure of dominion or control over the drugs. The fact that there were others in the room in addition to the defendant does not mean that the defendant could not exercise dominion or control over the drugs.

{¶29} Based on the fact that the crack cocaine and the heroin were concealed in

the same plastic bag — packaged together — the trial court reasonably inferred that

Wilson also had access to, and control over, the heroin found in the ceiling light. Thus,

the trial court inferred: (1) Wilson had control over the crack cocaine based on the

presence of his DNA on the plastic bag, and (2) Wilson had access and control over the

heroin based on the fact that the heroin was found adjacent to — and concealed in the

same bag as — the crack cocaine.

{¶30} Wilson repeatedly argues and implies that Greene — another occupant that

police found in the hotel room with Wilson — is a “much more logical suspect,” and that

there is a “strong likelihood” that Greene brought the drugs to the hotel room. In

support of his argument, Wilson claims that: (1) police found plastic ziploc bags in

Greene’s backpack, and these bags were not tested for comparison against the plastic bags

recovered from the ceiling light, and (2) Green, had “an extensive criminal record,”

including drug trafficking.

{¶31} Based on his experience with drug investigations, Detective Funk testified

that the bags found in Greene’s backpack appeared to be “new” and “clean,” and that it

did not appear as though any drugs had been in the plastic bags. Detective Funk

testified that if the plastic bags appeared to contain any drugs, they would have been tested. Furthermore, Detective Funk testified that police did not receive any Combined

DNA Index System (“CODIS”) hits on Greene or any of the other occupants. Detective

Funk testified that police only received a CODIS lead on Wilson’s DNA.

{¶32} Wilson argues that the mere presence of his DNA on the plastic bag does

not show that he possessed the drugs. However, Wilson’s drug possession conviction is

not based solely on the presence of his DNA on the plastic bags. The state established

constructive possession — beyond mere speculation — based on: (1) Wilson’s presence

in the hotel room, (2) the sizeable amount of drugs found in the hotel room where Wilson

had been present, and (3) the presence of Wilson’s DNA on the plastic bags. Together,

these facts support a finding that although the drugs were not in Wilson’s immediate

possession, he was able to exercise control over them and he was conscious of the drugs’

presence.

{¶33} Since we must view the evidence in a light most favorable to the prosecution, there was sufficient evidence to establish that Wilson was not only aware of the drugs in the hotel room, but also that he had dominion and control over them. Thus, we find the state met its burden of production and presented sufficient evidence, if believed, to establish that Wilson had dominion and control over the drugs and therefore, constructively possessed them.

2. Trafficking

{¶34} Wilson argues that the state failed to prove the elements of trafficking

beyond a reasonable doubt. Specifically, Wilson argues that the mere presence of his

DNA on the plastic bag does not show that he was trafficking the drugs. Furthermore, Wilson argues that he had no money in his possession, suggesting that he neither

attempted to purchase nor sold any drugs at the hotel.

{¶35} R.C. 2925.03 defines trafficking in drugs:

No person shall knowingly do any of the following:

(1) Sell or offer to sell a controlled substance or a controlled substance analog;

(2) Prepare for shipment, ship, transport, deliver, prepare for distribution,

or distribute a controlled substance or a controlled substance analog, when

the offender knows or has reasonable cause to believe that the controlled

substance or a controlled substance analog is intended for sale or resale by

the offender or another person.

{¶36} Wilson’s trafficking conviction was not based on “selling” drugs under R.C.

2925.03(A)(1) — the conviction was based on “preparing for shipment or distribution”

under R.C. 2925.03(A)(2). The trial court found Detective Funk’s testimony sufficient

to support the drug trafficking conviction based on the element of preparation.

{¶37} Detective Funk testified that the amounts of drugs recovered by the police

are relevant in determining whether the drugs are intended for personal use or for sale.

Based on his training and experience, Detective Funk testified that finding one or two unit

doses is consistent with personal use, whereas finding a lot more than one or two unit

doses is consistent with trafficking. {¶38} Detective Funk testified that police recovered a sizeable amount of drugs

from the hotel room, including: (1) 2.27 grams of cocaine, and (2) 9.24 grams of heroin.

Detective Funk testified that a single dose of crack cocaine would be approximately .1

grams, and that the 2.27 grams recovered would be approximately 22 to 23 unit doses.

Furthermore, Detective Funk testified that a single dose of heroin could vary from .2 to .4

milligrams, and that the 9.24 grams recovered would be between 30 and 40 unit doses.

Based on his training and experience, Detective Funk testified that the quantity of drugs

recovered from the hotel room was indicative of drug trafficking. The presence of the

scale in the hotel room also suggests trafficking, as opposed to personal use.

{¶39} Furthermore, Detective Funk testified that Wilson’s drug trafficking charge

was not based solely on the fact that his DNA was found on the plastic bag. Detective

Funk testified that he also considered Wilson’s presence in the hotel room where the

drugs were hidden as a factor in the investigation. Thus, Wilson’s drug trafficking

conviction was supported by: (1) his presence in the hotel room where the drugs were

hidden, (2) the presence of Wilson’s DNA on the plastic bag containing the crack

cocaine, (3) the sizeable amount of drugs recovered from the hotel room, which Detective

Funk testified suggested drug trafficking, as opposed to personal use, and (4) the presence

of the scale in the hotel room. {¶40} Accordingly, we find that the state produced sufficient evidence to support

Wilson’s drug trafficking conviction. Viewing the evidence in a light most favorable to

the state, a rational trier of fact could have found that the drugs were intended for sale.

{¶41} Wilson’s first assignment of error is overruled.

B. Manifest Weight

{¶42} In his second assignment of error, Wilson raises the same arguments that he

presented in his first assignment of error, arguing that: (1) there is no evidence that he

intended to buy or sell drugs at the hotel, (2) the evidence only establishes that he was

present in the hotel room where the drugs were subsequently located, and (3) Greene

brought the drugs to the hotel room and intended to sell them. Furthermore, Wilson

reiterates the transferrable nature of DNA, and claims “it is as likely, if not more likely,

that the DNA was transferred [rather than directly deposited] onto the contraband.”

Wilson’s arguments ignore the state’s evidence as outlined above — particularly Troyer’s

testimony regarding transfer DNA.

{¶43} In contrast to a challenge based on sufficiency of the evidence, a manifest

weight challenge attacks the credibility of the evidence presented and questions whether

the state met its burden of persuasion rather than production. State v. Whitsett, 8th Dist.

Cuyahoga No. 101182,

, citing Thompkins,

,

; State v. Bowden, 8th Dist. Cuyahoga No. 92266,

, ¶ 13.

When considering a claim that a conviction is against the manifest weight of the evidence, this court sits as a “thirteenth juror” and may disagree “with the factfinder’s

resolution of conflicting testimony.”

. The weight-of-the-evidence

standard “addresses the evidence’s effect of inducing belief.” State v. Wilson,

,

,

, ¶ 25, citing

.

{¶44} This court reviews the entire record, weighs the evidence and all reasonable

inferences, considers the witnesses’ credibility and determines whether, in resolving

conflicts in the evidence, the trier of fact “‘clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.’”

, quoting State v. Martin,

,

(1st Dist. 1983). In conducting such a review, this court remains mindful that the

credibility of the witnesses is primarily for the trier of fact to assess. State v. Bradley,

8th Dist. Cuyahoga No. 97333,

, citing State v. DeHass,

,

(1967), paragraph one of the syllabus. The trier of fact is in

the best position to make credibility determinations be

{¶45} cause this court cannot view the demeanor of a witness while testifying.

Therefore, the trier of fact is in the best position to determine if the proffered testimony is

credible. State v. Holloway, 8th Dist. Cuyahoga No. 101289,

, ¶ 42,

citing State v. Kurtz, 8th Dist. Cuyahoga No. 99103,

. Reversal on

manifest weight grounds is reserved for the “‘exceptional case in which the evidence

weighs heavily against the conviction.’”

, quoting

. {¶46} In the instant matter, we cannot say that the trial court clearly lost its way

and created a manifest miscarriage of justice by convicting Wilson of drug possession and

trafficking. After reviewing Wilson’s arguments, we are not persuaded that the

evidence in this matter weighs heavily against conviction.

{¶47} Wilson argues that evidence proves that he was present in the hotel room

with several other people, and that the mere presence of his DNA on the plastic bag does

not show that he possessed or was trafficking the drugs. However, Wilson’s convictions

are not based solely on the presence of his DNA — the trial court found him guilty based

on the totality of the circumstances. After considering the facts, evidence, and

credibility of Detectives Funk and Lavinder and BCI analyst Samuel Troyer, the trial

court found that Wilson constructively possessed the drugs in the hotel room, and that

Wilson prepared the drugs for shipment or distribution.

{¶48} Furthermore, we are not persuaded by Wilson’s arguments regarding the

improper handling of evidence and possible evidence contamination by the police.

“[C]hain [of custody] goes to the weight afforded the evidence, not its admissibility.”

Blevins,

,

; see also State v. Barzacchini,

,

(2d Dist. 1994) (“even when a break in the chain of

custody is uncovered, it goes to the credibility of the evidence and not to its

admissibility”). {¶49} Detective Funk testified that police secured the drugs after locating them in

the ceiling light and taking photographs. Furthermore, Troyer testified that he is

confident in the accuracy of his report, and that “[Wilson’s] DNA wouldn’t just appear on

the item because of the way that a police officer handled it.” Wilson does not point to

any evidence suggesting that the evidence was improperly collected, transported, or

analyzed. Assuming, arguendo, that there was a break in the chain of custody, the trial

court, as the trier of fact, was in the best position to weigh the evidence and make a

credibility determination.

{¶50} The evidence does not weigh heavily against Wilson’s convictions for drug

possession or trafficking, and we cannot say that the trial court clearly lost its way and

created a manifest miscarriage of justice.

{¶51} Wilson’s second assignment of error is overruled.

III. Conclusion

{¶52} We find that the above evidence, if believed, was sufficient to establish that

Wilson constructively possessed the drugs and prepared the drugs for shipment or

distribution. Furthermore, after reviewing the entire record, weighing all of the evidence

and considering the credibility of witnesses, we find that this was not the exceptional case

where 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.” Leonard,

,

,

, at ¶ 81. {¶53} Judgment affirmed.

It is ordered that 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

_________________________________________________________ FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and TIM McCORMACK, J., CONCUR