Opinion
No. 10AP-848 C.P.C. No. 07CR-08-6217
11-03-2011
State of Ohio, Plaintiff-Appellee, v. George L. Dingess, Sr., Defendant-Appellant.
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee. Clark Law Office, and Toki Michelle Clark, for appellant.
(REGULAR CALENDAR)
DECISION
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Clark Law Office, and Toki Michelle Clark, for appellant.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶1} Defendant-appellant, George L. Dingess, Sr. ("appellant"), appeals from a judgment entry of conviction entered following a jury trial in the Franklin County Court of Common Pleas in which he was convicted of three counts of possession of drugs. For the reasons that follow, we affirm that judgment.
{¶2} On August 27, 2007, appellant was indicted for three drug offenses: possession of crack cocaine as a felony of the first degree, possession of powder cocaine as a felony of the fourth degree, and possession of marijuana as a felony of the third degree. On July 9, 2009, appellant filed a motion to suppress evidence obtained as a result of the issuance of a search warrant executed at 1946 Fountain View Court, Apartment C, in Franklin County, Ohio. The motion raised four challenges: (1) there was no probable cause to support the issuance of the search warrant; (2) the search exceeded the scope of the warrant; (3) the judge who authorized the search failed to make an independent evaluation as to probable cause; and (4) the executing officers failed to make a proper return of the items seized under the warrant.
{¶3} On December 9, 2009, a hearing was held on the motion to suppress. The State of Ohio ("the State") introduced the testimony of Whitehall Police Sergeant Dennis Allen, who had prepared the affidavit used to obtain the search warrant. In the affidavit, Sergeant Allen averred he had been advised by a confidential informant that an individual known as "Dog" was selling crack cocaine from 1946 Fountain View Court, Apartment C. "Dog" was identified as appellant. Based upon this information, Sergeant Allen set up surveillance on the apartment and subsequently observed a vehicle pull up to the area of the apartment and watched a black male exit the vehicle and enter the apartment. A short time later, that same male exited the apartment, followed by appellant. The two men conversed in the parking lot and then appellant re-entered the apartment and the black male returned to the vehicle, which then drove away.
{¶4} According to the affidavit, the police followed the vehicle to 4691 Janis Drive. The black male entered that residence and the vehicle again drove away. The vehicle was subsequently stopped by police and the two individuals inside the vehicle were arrested. Both of those individuals advised Sergeant Allen they had given the black male money to buy drugs and that they went to the Fountain View apartment to purchase crack cocaine. One of the individuals also informed Sergeant Allen that the crack cocaine found in the crack pipe recovered from one of the vehicle occupants had been purchased at the Fountain View apartment.
{¶5} At the hearing, Sergeant Allen testified he prepared the request for a search warrant based upon a tip he received from a confidential informant who indicated appellant was selling crack cocaine and marijuana out of his residence. The confidential informant showed the residence to Sergeant Allen. Sergeant Allen testified he set up surveillance on the apartment, and later witnessed what he believed to be a drug transaction when a black male, later identified by the street name of "Animal," exited a vehicle, entered the apartment, and then exited the residence a short time later with appellant. After a few minutes of conversation, "Animal" left in the vehicle.
{¶6} According to Sergeant Allen's testimony, the police followed the vehicle as it left the parking lot of the apartment complex. The vehicle drove to another location on Janis Drive where "Animal" exited the vehicle. Upon leaving that location, the vehicle was stopped by police, who then spoke with the occupants of the vehicle. The occupants were a white female and a white male, identified as Christine Ward ("Ward") and Glen Burney ("Burney"), respectively. Both of them reported they drove to the apartment to buy crack cocaine. As a result of this information, Sergeant Allen testified he went before Judge Green to request a search warrant. Sergeant Allen further testified all of the facts presented were stated in the search warrant affidavit and there was no other testimony provided upon which Judge Green could base his decision of whether or not to grant the search warrant request.
{¶7} Sergeant Allen further testified he obtained the search warrant and drove to the Fountain View Court apartment to assist in executing the search. Appellant was observed leaving the apartment in a vehicle and was subsequently stopped. When police entered the apartment, there was a female present who claimed to be a guest of appellant. The police seized narcotics from the apartment, as well as other items to be used to establish residency, since appellant claimed during the execution of the search warrant that he did not live at the apartment. Among the items seized were several toothbrushes and combs.
{¶8} At the end of the motion hearing, the trial court overruled appellant's motion to suppress. The trial court provided three reasons for doing so. First, the trial court determined the affidavit provided probable cause to search the apartment, based upon the information he received from the informant, combined with Sergeant Allen's own surveillance observations at the apartment. Second, the trial court determined appellant lacked standing to challenge the stop of the vehicle after it drove away from the Janis Drive residence. Third, as to the scope of the warrant, the trial court found the seizure of the toothbrushes was not an indiscriminate seizure because the establishment of residency was directly related to the drug charges, and thus, the seizure of the toothbrushes was within the scope of the warrant.
{¶9} Several months after the court's ruling denying the motion to suppress, the matter proceeded to a jury trial. At trial, Sergeant Allen testified he conducted surveillance on the Fountain View Court apartment prior to executing the search warrant. He observed appellant leave the apartment and drive away, so he instructed another officer, John Earl, to conduct a traffic stop. Officer Earl stopped appellant's vehicle. A search of appellant produced four bags of marijuana, which were recovered from his back pocket. Police also located $217 on appellant's person, as well as a key later discovered to open the front door to the Fountain View Court apartment. After he was arrested, appellant was advised the police had a search warrant for the Fountain View Court apartment. However, appellant stated it was not his apartment.
{¶10} Officers knocked at the apartment door to execute the search warrant and were greeted by a woman identified as Sharise Clinton. Upon searching the apartment, the officers discovered: four baggies of crack cocaine in the kitchen freezer; one baggie of crack cocaine along with a loose piece of crack in a kitchen drawer; one baggie of powder cocaine in a kitchen drawer; 14 baggies and one large baggie of marijuana in the refrigerator; and some loose marijuana in the bedroom closet and on the kitchen counter. In total, the police recovered 99.7 grams of crack cocaine, 9.7 grams of powder cocaine, and over 1,202 grams of marijuana. The police also recovered walkie-talkies, a scale, and $1,295 in cash in a jacket located in a bedroom closet.
{¶11} In addition, the police collected various receipts, a work order, utility bills, and a paystub from the apartment, all of which were in the name of Natasha Felts. However, the apartment did not contain other indicia to suggest that a female lived in the apartment, as all of the clothing in the apartment were men's clothing.
{¶12} Following appellant's arrest, Sergeant Allen transported appellant to a jail cell at the Whitehall police department. As Sergeant Allen escorted appellant past one of the cells, appellant looked toward the cell and stated, "I see somebody ratted me out." (Tr. 89.) Sergeant Allen acknowledged that he did not reference this statement in his U10-100 report, which he testified was prepared for the purposes of relaying information about appellant and the alleged offense to the county jail and for arraignment. However, Sergeant Allen testified the statement was documented in his investigative summary included in the grand jury packet.
{¶13} Testimony and evidence produced at trial revealed that Bureau of Motor Vehicle ("BMV") records showed defendant listed at a Reynoldsburg address and the vehicle-impound form executed upon appellant's arrest listed a Canal Winchester address. Because appellant had denied living at the Fountain View Court apartment, Sergeant Allen testified the police also collected three toothbrushes and two combs from the bathroom of the apartment in order to establish residency. A DNA swab was also obtained from appellant. All of those items were sent to the Bureau of Criminal Identification and Investigation ("BCI&I") for testing and comparison.
{¶14} Forensic scientist Emily Draper testified she tested two of the toothbrushes seized from the Fountain View Court apartment and concluded appellant could not be excluded as the source of the DNA found on those two toothbrushes. Pursuant to BCI&I policy, Ms. Draper would not testify that appellant was a definitive match for the DNA extracted from one of the two toothbrushes tested. However, Ms. Draper testified the expected frequency of occurrence of that DNA profile occurs in 1 in 847.5 quintillion unrelated individuals. She further testified no other DNA was found on the two toothbrushes tested. In addition, Ms. Draper acknowledged she did not test the third toothbrush or the two combs that were submitted once she concluded appellant could not be excluded as the source of the DNA on two of the toothbrushes.
{¶15} Additionally, Sergeant Allen testified there was no fingerprint evidence to link appellant to any of the items recovered from the apartment.
{¶16} Appellant was found guilty of all three drug offenses. The trial court imposed a total prison sentence of six years, to run consecutively to a separate, unrelated federal prison sentence.
{¶17} Appellant now files this timely appeal and raises five assignments of error for our review:
ASSIGNMENT OF ERROR NO. 1:
A TRIAL COURT ERRS WHERE IT DENIES A MOTION TO SUPPRESS EVIDENCE IN A CASE WHERE THE SUPPORTING AFFIDAVIT LACKS SUFFICIENT FACTS TO ESTABLISH PROBABLE CAUSE.
ASSIGNMENT OF ERROR NO. 2:
A TRIAL COURT VIOLATES A DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN IT ALLOWS THE GOVERNMENT TO STACK EVIDENCE YET TO BE ENTERED IN THE RECORD ON A TABLE FOR THE JURY PANEL TO SEE PRIOR TO OPENING STATEMENTS EVEN BEING MADE.
ASSIGNMENT OF ERROR NO. 3:
THE CONVICTION IN THIS CASE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR NO. 4:
A CRIMINAL DEFENDANT IS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN A FORENSIC EXAMINER ADMITTEDLY CONDUCTS ANALYSIS IN A MANNER THAT IS FOCUSED EXCLUSIVELY ON THE ACCUSED.
ASSIGNMENT OF ERROR NO. 5:
THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR ACQUITTAL.
{¶18} In his first assignment of error, appellant claims the supporting affidavit attached to the search warrant lacked sufficient facts to establish probable cause, and thus the trial court erred when it denied his motion to suppress evidence because the warrant did not authorize the seizing of the toothbrushes from the apartment.
{¶19} 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 therefore is in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. As a result, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Id. Then, the appellate court must independently determine whether the facts satisfy the applicable legal standard, pursuant to a de novo review and without giving deference to the conclusion of the trial court. Id.
{¶20} Appellant challenges the trial court's ruling on the motion to suppress based on three issues. First, appellant contends the search warrant affidavit lacked sufficient probable cause to support the search of the apartment. Appellant attacks the validity of the warrant based upon his assertion that Sergeant Allen's testimony at the motion hearing was contradictory to the averments in the affidavit. For example, appellant alleges the testimony and the affidavit differ as to whether or not Sergeant Allen ever witnessed an actual drug transaction involving appellant and as to whether the allegations that appellant was selling drugs out of his home were corroborated. Appellant submits Sergeant Allen had no real basis for believing there were drugs in the apartment and claims Sergeant Allen was "not really that credible." (Appellant's brief, at 7.)
{¶21} Next, appellant claims the trial court erred in determining appellant lacked standing to challenge the traffic stop on the vehicle in which "Animal," Ward, and Burney were riding in after the vehicle left the Fountain View Court apartment. Appellant contends he should have standing to challenge the stop because he accompanied the driver of the vehicle at one point after the two of them exited the apartment.
{¶22} Finally, appellant challenges the scope of the warrant and the seizure of the toothbrushes and combs, arguing that the purpose of the warrant was to search for drugs. Appellant asserts the warrant does not permit the seizure of these additional items, as they were not listed in the warrant and a second warrant was not obtained prior to their seizure. Appellant submits the toothbrushes and combs should have been suppressed.
{¶23} Using the deferential standard established by the Supreme Court of Ohio in State v. George (1989), 45 Ohio St.3d 325, we believe the affidavit attached to the search warrant was sufficient to establish probable cause:
In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant.Id. at paragraph two of the syllabus, following Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317.
{¶24} In the affidavit, Sergeant Allen swore a confidential informant had recently advised him the informant had purchased crack cocaine from the apartment in question. "[P]ersonal observation by an informant is due greater reliability than a secondhand description." State v. Coger, 10th Dist. No. 10AP-320, 2011-Ohio-54, ¶16, citing to Gates, 462 U.S. at 234, 103 S.Ct. at 2330. In addition, Sergeant Allen's personal surveillance on the apartment corroborated the informant's tip. He personally observed "Animal" exit the car, enter the apartment, and return to the parking lot a short time later with appellant before getting back into the car and leaving the area. When the vehicle was eventually stopped, the two remaining occupants admitted that a man had purchased crack cocaine for them at the apartment and crack cocaine was found in the car.
{¶25} While appellant claims Sergeant Allen testified he did not corroborate the informant's tip, this claim is simply wrong. Sergeant Allen testified the affidavit did not contain a statement in which he specifically used express words stating he had corroborated the tip. Nevertheless, Sergeant Allen testified that such an express statement was unnecessary because the affidavit described the corroboration. Regardless, Sergeant Allen's testimony about what the affidavit says is irrelevant, since the affidavit speaks for itself. Furthermore, the admissions by Burney and Ward stating a man had purchased crack cocaine for them at the apartment, along with Sergeant Allen's surveillance observations and the presence of crack cocaine in the stopped vehicle, certainly corroborated the informant's tip. The fact that Sergeant Allen did not witness an actual hand-to-hand physical exchange of drugs does not weaken the municipal court judge's probable cause determination.
{¶26} Furthermore, as indicated above, the trial court is without authority to make its own determination as to probable cause based upon the testimony presented at the hearing. Instead, the trial court's role was to determine whether the municipal court judge had a "substantial basis" for concluding that probable cause existed and to afford great deference to its determination and resolve doubtful or marginal cases in favor of upholding the warrant. George at paragraph two of the syllabus. We believe the trial court properly executed its role.
{¶27} Next, we address appellant's objection to the trial court's finding that appellant lacked standing to challenge the stop of the vehicle after it left the Janis Drive residence.
{¶28} We need not address whether or not the stop was unconstitutional as to Burney and Ward, the two occupants of the vehicle at the time it was stopped, because even if the stop was unconstitutional, appellant cannot argue his rights were violated. Significantly, appellant was not in the car at the time of the stop, and thus he was not "seized." As a result, appellant cannot argue that his Fourth Amendment rights were violated as a result of the stop. Fourth Amendment rights are personal rights which cannot be asserted vicariously. Rakas v. Illinois (1978), 439 U.S. 128, 133-34, 99 S.Ct. 421, 425. "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Id., 439 U.S. at 134, 99 S.Ct. at 425, citing Alderman v. United States (1969), 394 U.S. 165, 174, 89 S.Ct. 961, 966-67. See also State v. Spencer (May 18, 1990), 2d Dist. No. 11740 and State v. Gaines (May 29, 1997), 10th Dist. No. 96APA09-1230. Thus, the stop and the statements made by Burney and Ward could not constitute a violation of appellant's rights, even if appellant was the target of the search. See Rakas, 439 U.S. at 135-36, 99 S.Ct. at 426.
{¶29} Finally, we address the issue of whether the seizure of the toothbrushes and combs from the bathroom of the Fountain View Court apartment exceeded the scope of the warrant. We find that it did not.
{¶30} In addressing appellant's challenge on this issue, the trial court found the seizure of the toothbrushes and combs was "not an indiscriminate seizure." (Tr. 50.) The trial court further determined seizing the toothbrush for the purpose of obtaining DNA in order to determine whether or not appellant lived at the apartment was directly related to the drug offenses, reasoning that if the suspect did not live at the apartment, the argument could easily be made that he had nothing to do with the drugs found in the apartment. Thus, the trial court found the seizure of the toothbrushes and combs was related to the overall issue of drug trafficking (or drug possession) and thus such a seizure was within the scope of the warrant. We agree with this reasoning.
{¶31} The warrant at issue authorized a search of the apartment located at 1946 Fountain View Court, Apartment C. It specifically authorized a search for "evidence of the commission of the criminal offenses of Trafficking in Drugs, 2925.03 R.C., Possession of Drugs, 2925.11 R.C., Drug Paraphernalia Offenses, 2925.14 R.C., Crack cocaine, or any other controlled substance or drug of abuse, as defined in §3719.41 R.C." (R. 57, Motion to Suppress Evidence, Defendant's exhibit A.) Notably, Crim.R. 41 authorizes the issuance of a warrant to search and seize "evidence of the commission of a criminal offense." The search warrant further authorized the seizure of "[p]apers, documents, or utility records indicating ownership of 1946 #C Fountain View Ct." (R. 57, Motion to Suppress Evidence, Defendant's exhibit A.)
{¶32} In considering whether a warrant is unconstitutionally overbroad, reviewing courts must conduct a de novo review. State v. Enyart, 10th Dist. No. 08AP-184, 2010-Ohio-5623, ¶38, citing State v. Gritten, 11th Dist. No. 2004-P-0066, 2005-Ohio-2082, ¶11, citing United States v. Ford (C.A.6, 1999), 184 F.3d 566, 575. The degree of specificity required in a search warrant varies with the nature of the items to be seized. Enyart at ¶38, citing Gritten at ¶13, and State v. Benner (1988), 40 Ohio St.3d 301, 307. A broad description of items to be searched and seized is "valid if it 'is as specific as circumstances and nature of the activity under investigation permit' and enables the searchers to identify what they are authorized to seize." State v. Hale, 2d Dist. No. 23582, 2010-Ohio-2389, ¶71, quoting State v. Armstead, 9th Dist. No. 06CA0050-M, 2007-Ohio-1898, ¶10.
{¶33} Furthermore, "[t]o search for evidence of a crime there must 'be a nexus * * * between the item to be seized and criminal behavior' as well as 'cause to believe that the evidence sought will aid in a particular apprehension or conviction.' " Enyart at ¶32, quoting Warden, Md. Penitentiary v. Hayden (1967), 387 U.S. 294, 307, 87 S.Ct. 1642, 1650. While the language in the search warrant at issue is somewhat broad, it is not overly broad. Here, the warrant limited the search for evidence to particular offenses (i.e., drug-related offenses).
{¶34} In addition, it was essential to establish who resided in the apartment as an element of the offense since this, in turn, would show who possessed the drugs. It is unreasonable to expect the warrant to describe with more precision all of the items which could be used to establish residency, since it would be extremely difficult to predict in advance all of the items which could be relevant to establishing who lived in the apartment. The toothbrushes and combs were clearly obvious sources of DNA, which would show who lived in the apartment and, thus, who possessed the drugs. As such, the seizure of the toothbrushes and combs did not exceed the scope of the warrant.
{¶35} For the reasons set forth above, we overrule appellant's first assignment of error.
{¶36} In his second assignment of error, appellant submits the trial court violated his constitutional right to a fair trial by allowing the State to store its evidence on counsel table, within the view of the jurors, prior to opening statements. Appellant contends this action unlawfully encroached upon his presumption of innocence. We disagree.
{¶37} "Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that 'one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.' " Holbrook v. Flynn (1986), 475 U.S. 560, 567, 106 S.Ct. 1340, 1345, quoting Taylor v. Kentucky (1978), 436 U.S. 478, 485, 98 S.Ct. 1930, 1934-35. However, this does not mean that every practice which singles out the accused from others in the courtroom must be struck down. Id., 475 U.S. at 567, 106 S.Ct. 1345. Courts could never hope to eliminate from trial procedures "every reminder that the State has chosen to marshal its resources against a defendant to punish him for allegedly criminal conduct." Id.
{¶38} In order to guarantee due process, "our legal system has instead placed primary reliance on the adversary system and the presumption of innocence. When defense counsel vigorously represents his client's interests and the trial judge *568 assiduously works to impress jurors with the need to presume the defendant's innocence, we have trusted that a fair result can be obtained." Id.
{¶39} Although the circumstances are somewhat different, we find the case of State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, to be instructive to our analysis here. In Trimble, the defendant argued the courtroom display of firearms and ammunition, which were not used in the crimes at issue but which were recovered from the defendant's home, was unduly prejudicial. During the testimony of one of the witnesses, the defense objected to the display of the firearms as they were being identified and introduced into evidence. The trial court overruled the objection. After their admission into evidence, the defense renewed its objection to the display. The trial court again overruled the objection but instructed the prosecution to put the items away, and the prosecution complied. On appeal, the Supreme Court of Ohio determined there was nothing in the record to demonstrate that the evidence prejudiced the jury by inflaming its passions.
{¶40} Here, given that the objection occurred prior to opening statements, and thus the items had not yet been admitted into evidence, the circumstances are somewhat different. Nevertheless, there is nothing in the record to suggest that the items on counsel table were anything other than items ultimately admitted into evidence or items which were the subject of trial testimony. In fact, trial counsel's objection to the items on the table referred to the items as "evidence," and there is nothing in the record to indicate any of the items on counsel table were prejudicial, non-evidentiary items. Appellant has failed to demonstrate how this arrangement of evidence prejudiced the jury by inflaming its passions and/or deprived him of a fair trial.
{¶41} Furthermore, the jury was instructed that appellant must be presumed innocent unless his guilt is established beyond a reasonable doubt through the production of evidence. "Evidence" was defined as "all the testimony received from the witnesses, facts or stipulations agreed to by counsel, and the exhibits admitted during the trial." (Tr. 190.) Thus, the jury was well aware that it could not determine appellant's guilt using anything other than what was properly admitted into evidence.
{¶42} Accordingly, appellant's second assignment of error is overruled.
{¶43} In his fourth assignment of error, which we address out-of-order, appellant asserts he was deprived of his right to a fair trial as a result of the forensic scientist's failure to test all five of the items seized from the bathroom of the apartment and submitted to BCI&I. Appellant contends this analysis was uniquely designed to incriminate him as the only possible offender.
{¶44} Appellant did not raise this issue in the trial court. As a result, he has forfeited all but plain error. Therefore, we review this assignment of error under a plain error analysis. Plain error is limited to the exceptional case in which the error, which was not objected to at the trial court, " 'rises to the level of challenging the legitimacy of the underlying judicial process itself.' " State v. Santiago, 10th Dist. No. 02AP-1094, 2003-Ohio-2877, ¶11, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 1997-Ohio-401.
{¶45} We find no plain error here. In the instant case, appellant does not allege that the State destroyed or failed to preserve evidence; rather, appellant claims due process required BCI&I to analyze all five items. However, "[t]he right to due process is not violated when investigators fail to use a particular investigatory tool." State v. Martin, 10th Dist. No. 06AP-301, 2007-Ohio-232, ¶15, citing Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333. See also City of Athens v. Gilliland, 4th Dist. No. 02CA4, 2002-Ohio-4347, ¶5 (there is a difference between failing to create evidence and destroying it; the due process clause is not violated when police fail to utilize a particular investigative tool; sloppy police work does not violate a defendant's due process rights).
{¶46} Counsel for appellant was free to argue (and in fact did argue) that testing the third toothbrush and two combs could have produced exculpatory evidence, but the police were not constitutionally required to test these items. Furthermore, the record supports the position that these items were and still are available for DNA testing, but appellant has only speculated that testing these items would have produced evidence in appellant's favor.
{¶47} Even if the State had failed to preserve the third toothbrush and two combs for DNA testing, appellant cannot show bad faith by the police, as the forensic scientist testified that once she determined appellant could not be excluded as a contributor of the DNA on two of the tested toothbrushes, she did not see any reason to test the other items, particularly given the backlog at BCI&I. "The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Youngblood, 488 U.S. at 56, 109 S.Ct. at 336. When evidence is only potentially exculpatory, its destruction does not constitute a due process violation if the police act in good faith and the evidence is handled in accordance with normal practices. State v. Rains (1999), 135 Ohio App.3d 547, 553. See also State v. Lewis (1990), 70 Ohio App.3d 624, 634 ("the suppression or failure to preserve potentially useful evidence violates constitutional due process only upon a showing of bad faith").
{¶48} Based upon the foregoing, we overrule appellant's fourth assignment of error.
{¶49} Next, we shall address appellant's fifth and third assignments of error, which are interrelated. In his fifth assignment of error, appellant argues the trial court erred in denying his motion for acquittal. In his third assignment of error, appellant contends his convictions are against the manifest weight of the evidence.
{¶50} A Crim.R. 29 motion for acquittal challenges the legal sufficiency of the evidence and whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. "A motion for acquittal under Crim.R. 29(A) is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence." State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶37. Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict. Thompkins at 386. We examine the evidence in the light most favorable to the state and conclude whether any rational trier of fact could have found that the state proved, beyond a reasonable doubt, all of the essential elements of the crime. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶78; State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396.
{¶51} In determining whether a conviction is based on sufficient evidence, an appellate court does not assess whether the evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. See Jenks, paragraph two of the syllabus; Thompkins at 390 (Cook, J., concurring); Yarbrough at ¶79 (noting that courts do not evaluate witness credibility when reviewing a sufficiency of the evidence claim). We will not disturb the verdict unless we determine that reasonable minds could not arrive at the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484, 2001-Ohio-4; Jenks at 273. Whether the evidence is legally sufficient to sustain a verdict is a question of law. Thompkins at 386.
{¶52} While sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence's effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, at ¶25, citing Thompkins at 386. Under the manifest weight of the evidence standard, a reviewing court must ask the following question: whose evidence is more persuasive - the state's or the defendant's? Id. at ¶25. Although there may be legally sufficient evidence to support a judgment, it may nevertheless be against the manifest weight of the evidence. Thompkins at 387; See also State v. Robinson (1955), 162 Ohio St. 486 (although there is sufficient evidence to sustain a guilty verdict, a court of appeals has the authority to determine that such a verdict is against the weight of the evidence); State v. Johnson, 88 Ohio St.3d 95, 2000-Ohio-276.
{¶53} "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." Wilson at ¶25, quoting Thompkins at 387. In determining whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving any conflicts in the evidence, the jury clearly lost its way and thereby created such a manifest miscarriage of justice that the conviction must be reversed and a new trial must be ordered. Thompkins at 387, citing State v. Martin (1983), 20 Ohio App.3d 172, 175.
{¶54} A conviction should be reversed on manifest weight grounds only in the most " 'exceptional case in which the evidence weighs heavily against the conviction.' " Thompkins at 387, quoting Martin at 175. Moreover, " 'it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible.' " State v. Brown, 10th Dist. No. 02AP-11, 2002-Ohio-5345, ¶10, quoting State v. Long (Feb. 6, 1997), 10th Dist. No. 96APA04-511.
{¶55} The essential elements of the crime of possession of drugs are "[n]o person shall knowingly obtain, possess, or use a controlled substance." R.C. 2925.11. In the case subjudice, appellant argues he did not possess the drugs because he did not live at or rent the Fountain View Court apartment; instead, he asserts he merely visited the apartment. Appellant submits there is overwhelming evidence which establishes that another person other than appellant lived at the Fountain View Court apartment. In addition, appellant contends BCI&I's failure to test all five items submitted resulted in a biased investigation. He further points to the lack of fingerprint evidence linking him to the drugs. As a result, appellant argues the State failed to establish that he was the person in possession of the drugs.
{¶56} We acknowledge that evidence was presented at trial to attempt to support the statement uttered by appellant upon his arrest in which he claimed he did not live at the Fountain View Court apartment. For example, the BMV records and the vehicle impound form provided two different addresses for appellant, neither of which were the Fountain View Court address. In addition, appellant's name was not on the papers recovered from inside the apartment.
{¶57} Nevertheless, the State presented its own evidence to establish that appellant did not simply "visit" the apartment, but in fact lived at the apartment and possessed the drugs, and the jury could have reasonably believed this evidence. Appellant was observed leaving the apartment on more than one occasion. Appellant's DNA was extracted from two toothbrushes seized from the apartment. A key to the front door of the apartment was recovered from appellant following his arrest. Four bags of marijuana were also recovered from his person, which the jury could have considered as circumstantial evidence demonstrating that the drugs in the apartment that he had just left were indeed his drugs. Furthermore, appellant essentially made a confession at the police station when he exclaimed "I see somebody ratted me out."
{¶58} Admittedly, the apartment may have been rented in the name of Natasha Felts (although the record does not contain an actual copy of the lease agreement) and papers containing her name were seized from the apartment. However, despite this, the apartment only contained men's clothing and did not contain any other indicia to suggest that a female lived at the apartment.
{¶59} Moreover, the jury could have reasonably considered the forensic examiner's decision not to conduct further DNA testing on the remaining items to be a sound decision, once it was established that appellant's DNA was contained on two of the toothbrushes recovered from the apartment. Additionally, the jury also could have given little weight to the fact that there was no fingerprint evidence to link appellant to the drugs.
{¶60} In viewing the evidence in a light most favorable to the State, we find that a rationale trier of fact could have concluded that appellant constructively possessed the drugs recovered from the Fountain View Court apartment. See State v. Bland, 10th Dist. No. 10AP-327, 2010-Ohio-5874, ¶13-14 (constructive possession exists when a person knowingly exercises dominion or control over an object, even though it may not be within the person's immediate physical possession; circumstantial evidence alone may be sufficient to support a finding of constructive possession, based upon factors such as the surrounding facts and circumstances and the defendant's actions).
{¶61} Furthermore, we cannot say, after reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of the witnesses, as well as resolving any conflicts in the evidence, that the jury clearly lost its way and created such a manifest miscarriage of justice that the convictions must be reversed.
{¶62} For all of these reasons, we reject appellant's challenges and find his convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. Therefore, we overrule appellant's fifth and third assignments of error.
{¶63} In conclusion, we overrule appellant's first, second, third, fourth, and fifth assignments of error. The judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.