[Cite as State v. Flores-Lopez,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27108 : v. : Trial Court Case No. 2014-CR-3487/1 : ELEAZAR FLORES-LOPEZ : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 24th day of February, 2017.

...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

MICHAEL HALLOCK, JR., Atty. Reg. No. 0084630, P.O. Box 292017, Dayton, Ohio 45429 Attorney for Defendant-Appellant

.............

WELBAUM, J. -2-

{¶ 1} In this case, Defendant-Appellant, Eleazar Flores-Lopez, appeals from his

conviction and sentence on one count of Aggravated Possession of Drugs (100 times

bulk or more), a first-degree felony.1 After a jury trial, Eleazar was found guilty and was

sentenced to 11 years in prison.

{¶ 2} In support of his appeal, Eleazar contends that the trial court erred in failing

to grant his motion to suppress statements made during his police interrogation. Eleazar

also contends that his conviction was based on insufficient evidence and, in a

supplemental assignment of error, that his conviction was against the manifest weight of

the evidence. After considering the record, we conclude that the assignments of error

are without merit. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} On October 8, 2014, Montgomery County Sheriff's Deputy, Joseph Caito,

was on duty with his canine partner, Gunner, and was located on Interstate 75 near State

Route 35 in Montgomery County, Ohio. Caito was not randomly patrolling; he had been

told that Detective Walters, a narcotics investigator for Homeland Security, had received

information that a white van from Indiana was going to be bringing illegal drugs into

Montgomery County. Both Caito and Gunner were certified in narcotics patrol, including

detection of narcotic drugs such as mushrooms, ecstasy, heroin, methamphetamine, and

crack-cocaine.

1 Because Appellant and his brother, Joel, were both involved in this crime and bear the same last names, we will use their first names, to avoid confusion. -3-

{¶ 4} Caito sat on the highway until the van was picked up, and followed it from

there. The vehicle was a white Chevrolet van, with an Indiana registration. Caito

observed the van violating the space between vehicles, and initiated a traffic stop at

around Edwin C. Moses Boulevard, once the vehicles had cleared a construction area.

{¶ 5} Once Caito stopped the vehicle, he contacted the occupants, informed them

of the reason for stopping, and asked them for identifying documents or information to

identify who they were. He learned that neither the driver (later identified as Joel Flores-

Lopez) nor the passenger (Eleazar Flores-Lopez) had an issued driver’s license.

{¶ 6} Caito’s suspicions were aroused by the fact that the car was a “a third-party

car,” which means that a car is registered to one person but the owner is not in the vehicle.

Another indicator was that the driver said the men were in the area looking for

construction-type work. However, based on Caito’s experience in highway patrol and

seeing this type of activity in the county, he did not believe the men were in the area for

that type of work because of the lack of tools in the vehicle. In addition, neither man had

any identification.

{¶ 7} Caito called for backup, which arrived within five or six minutes, and then

deployed Gunner for a free-air sniff. He began at the front driver's side of the vehicle,

put Gunner in a sitting position, and gave Gunner the command to sniff the exterior of the

car. Gunner alerted to the passenger’s side rear door of the van.

{¶ 8} As soon as Caito opened the sliding rear door, he saw a small black carry-

on style suitcase on the floorboard directly behind the front two seats, but in front of the

two captains’ chairs or middle occupant seats. The suitcase was within arm’s reach of

the driver and passenger, and would have been accessible from a seated position in -4-

either the driver’s or passenger’s seat, without the need to get out of the seat.

{¶ 9} When Caito picked up the suitcase, the first thing he noticed was its weight.

It seemed to be a little bit heavy for the size of the suitcase. Once Caito opened the

suitcase, he saw that the top layer consisted of men’s clothing. As Caito began to move

the clothes back, he saw two large packages wrapped in duct tape. Based on his

experience, Caito knew the content of the packages would be either drugs or illegal

currency. Caito then took the suitcase back to the hood of his patrol car, removed the

packages, and made sure there were no more packages.

{¶ 10} The clothing in the suitcase was sized similarly to the clothing worn by

Eleazar (medium-size), and to the clothing worn by Joel (larger clothing). The items

found in the suitcase included three extra-large shirts, a medium-sized shirt, a pair of

jeans size 33 by 32, another pair of jeans sized 34, a large pair of underwear, a medium

pair of underwear, and a towel. At the time of the stop, Eleazar was wearing a medium

shirt and pants that were size 32 by 30. The drugs were contained in taped bundles that

were wrapped up in the clothing and a towel.

{¶ 11} Caito also found two cell phones, a wallet containing $639, two money

orders in the amount of $500 each that had not been cashed, and a Wells Fargo receipt

indicating a $2,000 deposit. Caito indicated that this type of evidence was typical for the

narcotics world, as Wells-Fargo was a “go-to” bank for illegal drug sales deposits.

{¶ 12} Detective Walters searched the van after it was impounded. Among other

things, he found a Walmart bag containing size medium cold-weather gloves, a medium

sweatshirt with tags, and size medium-large sweatpants. The bag did not contain any

underwear. -5-

{¶ 13} Eleazar and his brother, Joel, were arrested and interviewed. Eleazar was

interviewed by Brian Turk, a special agent for Homeland Security. Because Eleazar did

not speak English, an employee of the Montgomery County Sheriff’s office, Shelly Diaz,

was brought in to interpret. Diaz was not a certified interpreter; she worked as a

bookkeeper in the foreclosure department. However, she was fluent in Spanish and had

been asked to translate in other cases.

{¶ 14} Turk advised Eleazar of his Miranda rights prior to the interview, but did not

record the reading of the rights because the protocol for Homeland Security at the time

was to not record interviews. However, Turk learned that this would likely be a state

prosecution, and recorded the rest of the interview.

{¶ 15} During the interview, Eleazar stated that he had lived in Arizona for 14

years, and had arrived in Indianapolis where his brother, Joel, lived, about three days

before the traffic stop. He claimed Joel had met a man named Edgar at Home Depot,

and Edgar had offered them employment doing construction work in Dayton for a month.

Although Eleazar did not know Edgar’s last name, they had followed him from

Indianapolis to Dayton. Edgar was driving a 2004 or 2005 red Ford Lobo F-150 pickup

truck. During the drive, Edgar was guiding them by phone and telling them where to go.

{¶ 16} Eleazar further stated that on the morning of October 8, 2014, he and Joel

met Edgar at Walmart, and left from there around 9:00 or 9:30 a.m. At Walmart, Edgar

told them to take a backpack or suitcase in the back of their van. Edgar threw it in the

back, and Eleazar then pushed it further inside the van. Eleazar told Turk that he did not

ask what was in the suitcase and denied knowing it contained drugs until Officer Caito

opened it. -6-

{¶ 17} Matthew Fox, a forensic chemist from the Miami Valley Regional Crime Lab,

tested the packages from the van for the presence of controlled substances. Fox, who

was qualified as an expert, stated that he weighed the packages before testing. The

gross weight of the sample, plus packaging, was 3,660 grams, plus or minus ten grams.

Of this total amount, Fox tested one sample that was 444 grams plus or minus four grams.

The bulk amount of methamphetamine in Ohio is 3 grams. Fox tested only the sample

weighing 444 grams because that amount was over 100 times the bulk amount.

{¶ 18} Fox used three tests that are the generally accepted methods of testing

drugs in the scientific community. These tests included a sodium nitroprusside color test,

a marquis color test, and gas chromatography-mass spectrometry (“GCMS”) testing. The

nitroprusside test checks for the presence of a compound called secondary aliphatic

amines. If that compound is present, the test will obtain a blue reaction, which it did in

this case.

{¶ 19} The second test was a marquis color test, which produces a variety of colors

depending on various compounds that may be present. An orange reaction was

produced, which is consistent with methamphetamine. Finally, Fox performed the

GCMS test. In this test, a gas chromatograph separates out different compounds of a

mixture. Mass spectrometry is then used to identify the compounds that are present.

The GCMS test identified methamphetamine, which is a Schedule II drug.

{¶ 20} Fox did not test the remaining drugs, but checked each bundle and

determined that the substances in the bags were consistent in nature with the bag that

he tested. These substances did not differ in color, texture, or consistency from the

tested drugs. -7-

{¶ 21} On October 17, 2014, Eleazar and his brother, Joel, were indicted for one

count of Possession of Drugs (Methamphetamine) in an amount equaling or exceeding

100 times the bulk amount, in violation of R.C. 2925.11(A). This count contained a

specification that they were major drug offenders in that the offense involved a drug

included in Schedule I or II, other than marijuana, that consisted of at least 100 times the

bulk amount.

{¶ 22} Prior to trial, Eleazar filed motions to suppress, including a motion to

suppress statements that he made during his interview. After hearing testimony from

several witnesses, including Diaz, Caito, Turk, and Bill Hargis, an interpreter who had

been certified by the Supreme Court of Ohio, the trial court overruled the motion to

suppress.

{¶ 23} At the jury trial, Joel testified on behalf of his brother. Joel had already

been convicted as charged, following a jury trial. State v. Flores-Lopez, 2d Dist.

Montgomery No. 26964,

. Joel testified that he had met Edgar before

Eleazar arrived in town, and Edgar told him then that he had possible construction work

available in Dayton. Three days later, after Eleazar arrived, Joel again met with Edgar.

Edgar said there would be enough work for a month, and they would make about $200

per day each. Joel stressed that he was the one who made the deal with Edgar, not

Eleazar.

{¶ 24} Joel also indicated that the suitcase belonged to Edgar, and that Edgar

asked them to put it in their truck because his own truck was full. Because Joel was

busy at the moment, Eleazar put the suitcase in the van. In addition, Joel denied

knowing there were drugs in the suitcase. -8-

{¶ 25} Joel stated that he had never been to Dayton before, and that Edgar told

him that when they arrived, they were to find a store like Home Depot and Edgar would

call them. Finally, Joel said he did not bring clothing with him, but had bought clothing,

including underwear, gloves, and hats at Walmart.

{¶ 26} The jury found Eleazar guilty as charged, and the trial court sentenced him

as noted above. Eleazar now appeals from his conviction and sentence.

II. Alleged Error in Denying the Motion to Suppress

{¶ 27} Eleazar’s First Assignment of Error states that:

The Trial Court Erred by Failing to Grant Defendant Eleazar Flores-

Lopez’s (“Flores-Lopez”) Motion to Suppress Statements Made in the

Course of an Interrogation Using an Unqualified Interpreter.

{¶ 28} Under this assignment of error, Eleazar argues that the trial court should

have granted his motion to suppress because he was not provided with a certified or

qualified interpreter. After hearing the testimony at the hearing, the trial court overruled

the motion to suppress. In particular, the court found the interpreter, Diaz, credible when

she said she had advised Eleazar of his Miranda rights. As a result, the court concluded

there was no violation of Eleazar’s rights. The court further observed that a certified

language interpreter need not be used in out-of-court-proceedings, and that while the

expert witness criticized Diaz in some respects, the criticism did not rise to such a level

that would cause Diaz’s translation to be inadequate. The court did note that some of

the statements might be inadmissible on a case-specific basis, and that the court would

entertain a motion in limine in that regard. No such motion was filed, and no objections -9-

were raised at trial to any specific statements.

{¶ 29} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” (Citation omitted.) State v. Burnside,

,

,

. “Consequently, an appellate court must accept the

trial court's findings of fact if they are supported by competent, credible evidence. * * *

Accepting these facts as true, the appellate court must then independently determine,

without deference to the conclusion of the trial court, whether the facts satisfy the

applicable legal standard.” (Citations omitted.)

{¶ 30} After applying these standards, we conclude that the trial court did not err

in denying the motion to suppress. Under the Fifth Amendment of the Constitution, no

person can be compelled to testify against himself, and those who are accused have a

right to the assistance of counsel. “In light of the inherent coercion involved in custodial

interrogation, Miranda established ‘a set of prophylactic measures’ to safeguard the

constitutional privilege against self-incrimination.” State v. Barker, Ohio Sup. Ct. Slip

Opinion No.

, quoting J.D.B. v. North Carolina,

,

,

(2011), which in turn cites Miranda v. Arizona,

,

,

(1966).

{¶ 31} “In broad terms, Miranda held that the state may not use a defendant's

statements from custodial interrogation ‘unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-incrimination.’ ” Barker at ¶ 22,

quoting

. “Prior to questioning, the police must warn the suspect ‘that he -10-

has a right to remain silent, that any statement he does make may be used as evidence

against him, and that he has a right to the presence of an attorney, either retained or

appointed.’

The Supreme Court recognized the importance of a suspect's ‘real

understanding’ of his rights and his intelligent decision whether to exercise them.”

Barker at ¶ 22, quoting

.

{¶ 32} In Barker, the court further observed that:

If custodial interrogation continues in the absence of an attorney after

a police officer advises a suspect of his rights, the government bears “a

heavy burden” to demonstrate by a preponderance of the evidence that the

suspect “knowingly and intelligently waived his privilege against self-

incrimination and his right to retained or appointed counsel” before speaking

to the police.

, citing Escobedo v. Illinois,

,

,

(1964), fn. 14 * * * . * * *

A court may not presume a valid waiver either from the suspect's silence

after warnings are given or from the fact that the suspect eventually

confessed.

. Rather, the record must show

“ ‘that an accused was offered counsel but intelligently and understandingly

rejected the offer. Anything less is not waiver.’ ”

quoting Carnley v.

Cochran,

,

,

(1962). If the state

does not satisfy its burden, “no evidence obtained as a result of

interrogation can be used.” Id. at 479,

.

(Citations omitted.) Barker at ¶ 23. Courts consider the totality of the circumstances in

deciding if suspects have “knowingly, intelligently, and voluntarily waived” their Miranda -11-

rights. (Citation omitted.) Id. at ¶ 24.

{¶ 33} In support of his argument that the motion to suppress should have been

granted, Eleazar cites State v. Ramirez,

,

(11th

Dist. 1999). In Ramirez, the defendant’s murder conviction was reversed, based on flaws

in an interpreter’s translation of the defendant’s Miranda rights. Like Diaz, the interpreter

in Ramirez was not certified, but had taken Spanish in college and had lived in Mexico for

six months. Id. at 91. However, in contrast to the procedure used in the case before

us, the police in Ramirez instructed the interpreter to read the defendant his Miranda

rights using a Miranda card that was written in English. Id. While doing so, the

interpreter made a number of significant errors and also failed to tell the defendant of

certain rights that he had, including having an attorney present during questioning, and

that if the defendant spoke to police, his statements could be used against him in court.

Id. at 94.

{¶ 34} In contrast, the Montgomery County Sheriff’s Office has a pre-interview form

setting forth the waiver of rights in Spanish and containing a waiver of rights paragraph in

Spanish. As the trial court noted, Diaz used this form when advising Eleazar of his rights.

Decision and Entry Overruling Defendant’s Motion to Suppress, Doc. #38, p. 4.

{¶ 35} Courts have also stressed that “[a] translation of a suspect's Miranda rights

need not be perfect or verbatim if the suspect understands that he need not speak to the

police, that any statement made may be used against him, that he has a right to an

attorney, and that an attorney will be appointed if he cannot afford one.” State v.

Ramirez-Garcia,

,

(12th Dist. 2001), citing

Duckworth v. Eagan,

,

,

(1989). -12-

(Other citations omitted.)

{¶ 36} The transcript of the suppression hearing indicates that Eleazar had twelve

years of schooling, that he read each of the five Miranda rights from the pre-interview

form, and that he read the waiver of rights paragraph. Eleazar had no difficulty reading

the waiver of rights paragraph. In addition, Diaz used the pre-interview form written in

Spanish when advising Eleazar of his rights. Eleazar agreed to speak with the police

and signed the form waiving his rights. There was also no evidence of coercion or

physical threats, nor was there any evidence that Eleazar was under the influence of

drugs or alcohol. The totality of the circumstances indicate that Eleazar knowingly,

voluntarily, and intelligently waived his Miranda rights.

{¶ 37} Regarding the content of the interview itself, Eleazar’s expert criticized Diaz

during the suppression hearing for having asked questions on her own that were not

asked by the law enforcement official. The expert described this as demonstrating a lack

of impartiality. In addition, the expert criticized Diaz for expressing opinions in some

instances, for occasionally failing to interpret things that Eleazar said back into English,

and for speaking at times about Eleazar in the third person. The trial court did not find a

pattern or that this was done on a broad scale. However, the trial court did indicate that

Eleazar could file a motion in limine to exclude particular statements, which Eleazar failed

to do. Eleazar also failed to object at trial to any portion of Special Agent Turk’s

testimony about the interrogation. In particular, at trial, Turk recounted statements that

Eleazar had made during the interrogation.

{¶ 38} To the extent that Eleazar’s objection is based on the prejudicial or

irrelevant nature of his statement to the police, the failure to object at trial waived all but -13-

plain error. State v. Jones,

,

(2001), citing

State v. Joseph,

,

(1995). “ ‘Plain error does not

exist unless, but for the error, the outcome at trial would have been different.’ ”

In

this regard, our review of the record indicates no error, let alone plain error. Eleazar

basically indicated that he and his brother were coming to Dayton at the request of Edgar,

to do construction work, that the deal for the work was between Joel and Edgar, and that

Eleazar did not know what was in the suitcase until Officer Caito opened the suitcase.

{¶ 39} Furthermore, even if the objection is to the alleged errors during the

interrogation, the law does not require certified interpreters to be furnished during out-of-

court proceedings. For example, R.C. 2311.14(A) requires only that courts appoint

“qualified interpreters” for witnesses or parties during legal proceedings, where the party

or witness “cannot readily understand or communicate * * *.” (Emphasis added.)

{¶ 40} Sup.R. 88(A) also requires appointment of foreign language interpreters in

“a case or court function * * *.” (Emphasis added.) In this situation, Ohio Supreme Court

certified foreign language interpreters are required, except where exceptions in Sup.R.

88(D)(2)-(4) apply. For example, certified foreign language interpreters are not required

in certain court proceedings, including where such interpreters do not exist or are not

reasonably available. Sup.R. 88(D)(1)-(2).

{¶ 41} Courts instead, may use provisionally qualified foreign language

interpreters, or language-skilled foreign language interpreters to participate in-person in

cases or court functions, or courts may, in some situations, use interpreters who

participate through “through telephonic interpretation.” Sup.R. 88(D)(3)-(4).

{¶ 42} Notably, neither the statute nor the Superintendence Rule requires that -14-

certified foreign language interpreters be used in out-of-court proceedings. Eleazar has

provided no case law indicating otherwise, and we agree with the trial court that even

though the translator was not perfect, there was no pattern of poor performance or any

significant issue.

{¶ 43} Based on the preceding discussion, the First Assignment of Error is

overruled.

III. Sufficiency of the Evidence and Manifest Weight Challenge

{¶ 44} Eleazar’s Second and Third Assignments of Error are interrelated and will

be considered together. Eleazar’s Second Assignment of Error states that:

The Trial Court Erred in Overruling Flores-Lopez’s Motion for

Acquittal (Crim.R. 29) Where the State Failed to Prove Each Element of

R.C. 2925.11.

{¶ 45} Eleazar’s Third Assignment of Error states that:

Flores-Lopez’s Conviction is Against the Manifest Weight of the

Evidence.

{¶ 46} Under these assignments of error, Eleazar contends that his conviction was

not supported by sufficient evidence and was also against the manifest weight of the

evidence because the State failed to provide concrete evidence that he had knowledge

of the contents of the suitcase. Eleazar also bases a manifest weight argument on

discrepancies between the testimony of Detectives Walter and Caito concerning how

many seats were in the van.

{¶ 47} “A sufficiency of the evidence argument disputes whether the State has -15-

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581,

, citing State v. Thompkins,

,

(1997). In this situation, we apply the test from State v. Jenks,

,

(1991), which states that:

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

to 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.

(Citation omitted).

at paragraph two of the syllabus.

{¶ 48} Contrastingly, “[a] weight of the evidence argument challenges the

believability of the evidence and asks which of the competing inferences suggested by

the evidence is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In

this situation, a court reviews “ ‘the entire record, weighs the evidence and all reasonable

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

conflicts in the evidence, the jury clearly lost its way and created such a manifest

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

discretionary power to grant a new trial should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction.’ ” Thompkins,

, quoting State v. Martin,

,

(1st Dist. 1983). -16-

Accord State v. Drummond,

,

,

, ¶

193. “The fact that the evidence is subject to different interpretations does not render

the conviction against the manifest weight of the evidence.” State v. Adams, 2d Dist.

Greene Nos. 2013-CA-61, 2013-CA-62,

, citing Wilson at ¶ 14.

{¶ 49} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No.

10AP-881,

, ¶ 11. Accord State v. Robinson, 2d Dist. Montgomery No.

26441,

, ¶ 17. As a result, “a determination that a conviction is

supported by the weight of the evidence will also be dispositive of the issue of sufficiency.”

(Citations omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725,

.

{¶ 50} As an additional matter, “[b]ecause the factfinder * * * has the opportunity

to see and hear the witnesses, the cautious exercise of the discretionary power of a court

of appeals to find that a judgment is against the manifest weight of the evidence requires

that substantial deference be extended to the factfinder's determinations of credibility.

The decision whether, and to what extent, to credit the testimony of particular witnesses

is within the peculiar competence of the factfinder, who has seen and heard the witness.”

State v. Lawson, 2d Dist. Montgomery No. 16288,

, *4 (Aug. 22, 1997).

{¶ 51} “Contrastingly, the decision as to which of several competing inferences,

suggested by the evidence in the record, should be preferred, is a matter in which an

appellate judge is at least equally qualified, by reason and experience, to venture an -17-

opinion.”

For this reason, “we defer more to decisions on what testimony should

be credited, than we do to decisions on the logical force to be assigned to inferences

suggested by evidence, no matter how persuasive the evidence may be.” State v.

Brooks, 2d Dist. Montgomery No. 21531,

, citing Lawson at *4.

{¶ 52} In the case before us, Eleazar was charged with Possession of Drugs

(Methamphetamine), in violation of R.C. 2925.11(A). This subsection of the statute

provides that “No person shall knowingly obtain, possess, or use a controlled substance

or a controlled substance analog.” At the time Eleazar was arrested, R.C. 2901.22(B)

defined the culpable state of “knowingly” as follows:

A person acts knowingly, regardless of 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.2

{¶ 53} “Possess” or “possession” is defined 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). 3 “ ‘Possession of a drug may be either actual physical

possession or constructive possession. A person has constructive possession of an item

when he is conscious of the presence of the object and able to exercise dominion and

2 R.C. 2901.22 was amended, effective March 23, 2015. See Am . S.B. 361, 2014 Ohio Laws File 194. This case was tried after the amendment. However, the trial court did not use the amended definition, which added a sentence to R.C. 2901.22(B). Instead, the court used the definition in effect at the time the alleged crime was committed. Transcript of Proceedings, Vol. III, p. 531. 3 R.C. 2925.01 was also amended after the alleged crime, but no change was made in

the wording of R.C. 2925.01(K). See Am. Sub. S.B. No. 213, 2016 Ohio Laws File 92. -18-

control over that item, even if it is not within his immediate physical possession.’ ” State

v. Dillard,

,

,

(2d Dist.), quoting

State v. Mabry, 2d Dist. Montgomery No. 21569,

.

{¶ 54} Whether a person “knowingly possessed * * * a controlled substance is to

be determined from all the attendant facts and circumstances available.” State v.

Teamer,

,

(1998). Moreover, “[c]ircumstantial

evidence and direct evidence inherently possess the same probative value * * *.” Jenks,

,

, at paragraph one of the syllabus.

{¶ 55} In view of the preceding discussion, the State did not have to provide direct

(or “concrete”) evidence of Eleazar’s knowledge or possession; the conviction could rest

on circumstantial evidence. In State v. Ruby,

,

,

(2d Dist.), we held that a reasonable trier of fact could conclude that the

defendant constructively possessed drugs, where the defendant had loaned his wife's

vehicle to others in the past, including known drug dealers, and his wife had previously

removed drug paraphernalia from the vehicle. When the defendant was stopped by the

police, the facts indicated that the defendant had loaned his vehicle to a known drug

dealer earlier that day. The dealer was also in the car with the defendant. A crack pipe

and piece of crack cocaine were recovered from the floor of the rear passenger

compartment, behind the driver's seat. Id. at ¶ 42-43.

{¶ 56} In addition, we concluded in Ruby that the conviction was not against the

manifest weight of the evidence. In this regard, we rejected the defendant's argument

that he did not know contraband was in the vehicle and that it had been placed there by

the drug dealer. Id. at ¶ 44. Again, we relied on circumstantial evidence. Id. at ¶ 36. -19-

{¶ 57} In the case before us, the suitcase containing the drugs was located in close

proximity to Eleazar’s seat. The suitcase also contained clothing that was consistent

with the two different clothing sizes worn by Eleazar and his brother. In addition, we note

that Eleazar moved the suitcase closer to the front of the vehicle after it was placed in the

van by Edgar. Officer Caito observed that the suitcase was heavier than one would

expect if it only contained clothing. Again, while this evidence is circumstantial, direct

evidence of Eleazar’s knowledge need not be provided.

{¶ 58} As a further matter, Joel’s testimony failed to aid Eleazar. Although Joel

testified that he was the one who made the deal for work with Edgar, Joel also testified

that he did not bring any clothing with him and had purchased underwear at Walmart.

However, no underwear was found in the Walmart bag; instead, the bag contained only

gloves, a sweatshirt, and sweatpants. The fact that no underwear was found in the bag

casts doubt on Joel’s credibility. We also stress that a pair of men’s medium underwear

(a size that would fit Eleazar) was found in the suitcase, along with a pair that would have

fit Joel. It is difficult to believe that people would travel to a city where they intended to

work for a month, without bringing a change of underwear.

{¶ 59} Eleazar also said in his statement that Edgar was traveling alone. While it

is possible that Edgar packed two different sizes of men’s underwear and clothing for

himself, it is an unlikely coincidence that the clothing in the suitcase was also consistent

with the sizes worn by Eleazar and Joel.

{¶ 60} Eleazar’s final argument is that the judgment was against the manifest

weight due to discrepancies between the testimony of Officer Caito and Detective Walters

about the presence of a middle row of captains’ chairs in the vehicle. According to Caito, -20-

the suitcase with the drugs was on the floorboard directly behind the two front seats and

in front of two captains’ chairs, or middle occupant seats. Transcript of Proceedings, Vol.

II, p. 286.

{¶ 61} In contrast, Detective Walters testified that when he searched the van on

September 15, 2015, there were only two seats inside the vehicle. Transcript of

Proceedings, Vol. I, p. 219, referencing State’s Ex. 5. Officer Caito looked at the same

photograph and stated that the only difference between the way the van looked on the

day of the stop and in Ex. 5 was that the suitcase in Ex. 5 was not located where he

initially found it. Transcript of Proceedings, Vol. II, p. 295. At that latter point, the

suitcase was in the back of the van, in front of a spare tire. Id. at 296. The following

exchange then occurred:

Q. Okay. And then could you describe where you located the

suitcase when you conducted the search of the vehicle?

A. Yes, the two chairs that you’re seeing in the middle of the car

there are what’s called “captains’ chairs.” Those are rear occupant seats.

Directly in front of those, on the floorboard, is where the suitcase was initially

located, which would basically be between the middle occupant seats and

the backs of the front driver and passenger seats.

Id. at p. 296, referring to State’s Ex. 5.

{¶ 62} Officer Caito was emphatic about what he originally saw and where the

suitcase was located on the day of the traffic stop. He also stated that there were four

seats in the van as shown on Exhibit 5, and that if anyone said there were two seats, that

person would be wrong. Id. at p. 313. In contrast, Detective Walters was not present -21-

at the time of the stop and only viewed the suitcase and van nearly a year later, when he

conducted a search. His testimony was also not detailed and was somewhat

ambiguous.

{¶ 63} “In either a criminal or civil case the weight to be given the evidence and the

credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass,

,

(1967). “A jury, as finder of fact, may believe all,

part, or none of a witness's testimony.” (Citations omitted.) State v. Jackson, 8th Dist.

Cuyahoga No. 93235,

, ¶ 16. See also State v. Howard, 11th Dist. Lake

No. 2009-L-158,

, ¶ 33 (noting that even if testimony of two officers is

inconsistent, a trier of fact is entitled to decide credibility and believe all, part, or none of

a witness’s testimony).

{¶ 64} As a final matter, whether there were captains’ chairs or not is irrelevant.

Specifically, Joel testified that the suitcase was located where both he and Eleazar could

reach back and touch it. Transcript of Proceedings, Vol. II, pp. 458-459.

{¶ 65} Based on the preceding discussion, the trial court did not err in denying

Eleazar’s Crim.R. 29 motion for acquittal, as the State presented sufficient evidence to

sustain a conviction for the offense charged. In addition, the conviction was also not

against the manifest weight of the evidence. Accordingly, the Second and Third

Assignments of Error are overruled.

IV. Conclusion

{¶ 66} All of Appellant’s assignments of error having been overruled, the judgment

of the trial court is affirmed. -22-

.............

DONOVAN, J. and FROELICH, J., concur.

Copies mailed to:

Mathias H. Heck, Jr. Michael J. Scarpelli Michael Hallock, Jr. Hon. Timothy N. O’Connell