Ohio Appellate Reports
Unpublished
STATE v. CORTEZ, Unpublished Decision (1-12-2007)
2007-Ohio-96 State of Ohio, Appellee, v. Michael A. Cortez,
Appellant. No. L-05-1112. Court of Appeals of Ohio, Sixth
District, Lucas County. Decided: January 12, 2007.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Trial Court No. CR-2004-2048.
Julia R. Bates Lucas County Prosecuting Attorney, and
Jennifer L. Donovan, Assistant Prosecuting Attorney, for
appellee.
Neil Stewart McElroy, for appellant.
DECISION AND JUDGMENT ENTRY
GLASSER, J.
{¶ 1} This appeal comes to us from a judgment issued
by the Lucas County Court of Common Pleas following a jury
verdict which found appellant guilty of possession of
heroin. Because we conclude that the verdict was supported
by sufficient evidence and was not against the manifest
weight, but that appellant’s sentence was imposed pursuant
to unconstitutional statutes, we affirm in part and reverse
in part.
{¶ 2} Appellant, Michael A. Cortez was indicted on
one count of possession of heroin, a violation of R.C.
2925.11(A) and (C)(6)(d). Appellant filed a motion to
suppress which was denied. At trial, the following evidence
was presented to the jury.
{¶ 3} Toledo Police Detective Jerome Elmore
testified that in December 2003, he began investigating
suspected drug activities at two properties occupied by
appellant. Appellant lived in a home at 969 Berry Street,
Toledo, Lucas County, Ohio. Appellant also was renting to
own 811 Earl Street which was adjacent to the residence
property. The Earl Street property was a two story building
consisting of a first-floor garage and a second story loft
apartment. Elmore stated that his investigation included
surveillance of the garage property approximately five to
six hours per day, 15 to 16 days per month in December and
January, including some weekends. He said that on off-shift
times he would drive by or watch the property for 30
minutes in the mornings when he had court appearances.
{¶ 4} Elmore stated that during February, on the
three days preceding the search, he watched again for about
six hours per shift because the team was preparing to
execute on the warrant. There were two entrances to the
apartment: one from within the garage and the other at the
front of the building. Elmore stated that, other than “drug
transactions,” appellant was the only person he every saw
entering or leaving the Earl Street property. He also
stated that shortly after appellant entered the garage
area, he would observe the lights turn on in the upstairs
apartment.
{¶ 5} Elmore stated that on February 4, 2004, he saw
appellant enter the building. Elmore then left for
approximately 45 minutes to obtain a search warrant and
join with the search team. When the 12 members of the
search team, including vice detectives, returned and
executed the warrant, the entrance to the loft area located
within the garage was barricaded from the inside. The
garage contained two vehicles. The second story apartment
area contained “play room” items, including a pool table,
ping pong tables, electronic surveillance devices, and
two-way radios. The lights were still on, but no one was
present in the building and no dishes, clothing, or
personal items were found to indicate that anyone was
actually living in the apartment.
{¶ 6} In the kitchen area, the police also found a
coffee grinder, a plastic bag with brown chunks of what
later tested to be 14.11 grams of heroin, a sandwich bag
box, lactose, a scale, ten pipes, $1,000 in cash, and a
January 2003 computer store receipt with appellant’s name on
it. The grinder, lactose, scale, and plastic bags were
noted to be commonly present for the processing and sale of
heroin. Although the grinder had no trace of heroin residue
or coffee grinds, appellant’s fingerprint was found on it.
Another partial print, which was not appellant’s, was found
on the sandwich bag box. No other fingerprints were found on
any of the other items.
{¶ 7} Elmore acknowledged that he had assumed
appellant had entered the loft apartment when the light
came on after appellant entered. The detective further
acknowledged that he could not say absolutely that
appellant stayed in the garage or had entered the apartment.
Elmore conceded that he did not know how or when
appellant’s print came to be on the grinder and that the
mere presence of the fingerprint did not establish that
appellant occupied the apartment area.
{¶ 8} Elmore then testified that a second search
warrant was executed for appellant’s residence at 969 Berry
Street. As a result of that search, police found drug
paraphernalia, including more glass pipes. Warrants were
issued for appellant and he was later arrested based upon
items found at both addresses.
{¶ 9} Detective Greg Mattimoe testified that he
participated with Detective Elmore in the execution of the
search warrant on 811 Earl Street. He corroborated that the
door to the apartment within the garage area was barricaded
and unoccupied. Mattimoe stated that he found a plastic
baggie of what appeared to be heroin smashed flat under a
heavy box in a kitchen cupboard. He gave the baggie to
Detective Elmore. Another detective testified that the
substance in the baggie tested to be heroin.
{¶ 10} Detective Jerry Shriefer then testified that
he dusted for and found the fingerprints on the coffee
grinder and sandwich bag box. Shriefer opined that the
fingerprint on the coffee grinder matched appellant’s,
which was confirmed by a second detective. He also stated
that no fingerprints were recovered from the heroin baggie
or the scale, and the partial print on the sandwich bag box
remained unidentified.
{¶ 11} The jury found appellant guilty of possession
and he was sentenced to a term of three years mandatory
incarceration. Appellant now appeals from that judgment,
arguing the following three assignments of error:
{¶ 12} “Assignment of Error No. 1
{¶ 13} “The evidence was insufficient as a matter of
law to support a finding beyond a reasonable doubt that the
defendant-appellant, Mr. Cortez, was guilty of possession
of heroin in violation of R.C. 2925.11(A) and (C)(6)(d).
{¶ 14} “Assignment of Error No. 2
{¶ 15} “The jury verdict was against the manifest
weight of the evidence.
{¶ 16} “Assignment of Error No. 3
{¶ 17} “In sentencing the appellant to more than the
statutory minimum, the trial court relied on facts not
within the jury verdict or admitted by the defendant,
contrary to the United States Supreme Court’s rulings in
USA v. Booker [sic] and Blakely v. Washington.”
I.
{¶ 18} In his first assignment of error, appellant
argues that the evidence was insufficient to support the
conviction.
{¶ 19} Upon review of the sufficiency of the
evidence to support a criminal conviction, an appellate
court must examine:
{¶ 20} “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.”
State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of
the syllabus.
{¶ 21} “Sufficiency” applies to a question of law as
to whether the evidence is legally adequate to support a
jury verdict as to all elements of a crime. State v.
Thompkins (1997), 78 Ohio St.3d 380, 386. If a defendant’s
conviction is reversed based upon the sufficiency of the
evidence, the defendant goes free. See Id.
{¶ 22} R.C. 2925.11(A) states: “[n]o person shall
knowingly obtain, possess, or use a controlled substance.”
“Knowingly” is defined by R.C. 2901.22(B) as follows: “A
person acts knowingly, regardless of his purpose, when he
is aware that his conduct will probably cause a certain
result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such
circumstances probably exist.”
{¶ 23} To “possess” or “possession” means “having
control over a thing or substance, but may not be inferred
solely from mere access to the thing or substance through
ownership or occupation of the premises upon which the
thing or substance is found.” R.C. 2925.01(K).
{¶ 24} Possession of a controlled substance “may be
actual or constructive. * * * A person has actual
possession of an item when it is within his immediate
physical control.” State v. Burnett, 10th Dist. No.
02AP-863, 2003-Ohio-1787, ¶ 19; State v. Kobi
(1997), 122 Ohio App.3d 160, 174. Constructive possession
occurs when an individual knowingly exercises dominion and
control over an object, even though that object may not be
within his immediate physical possession or when one has
knowledge of the presence of the drugs. State v. Hankerson
(1982), 70 Ohio St.2d 87, syllabus.
{¶ 25} Thus, the mere presence of an individual in
the vicinity of illegal drugs is insufficient to establish
the element of possession. State v. Chandler (Aug. 9,
1994), 10th Dist. No. 94AP-172. Actual ownership of the
drugs, however, need not be proven to establish
constructive possession. State v. Mann (1993), 93 Ohio
App.3d 301, 308. Constructive possession may be proved by
circumstantial evidence alone. State v. Taylor (1997), 78
Ohio St.3d 15; Jenks, supra, at 272-73. The discovery of
readily accessible drugs in close proximity to a person
constitutes circumstantial evidence that the person was in
constructive possession of the drugs. Burnett, supra, at
¶ 20; State v. Pruitt (1984), 18 Ohio App.3d 50, 58.
{¶ 26} In this case, evidence was presented that
appellant often entered the building where the apartment
was located and the heroin was found. Over a period of two
months, during the many hours of police surveillance,
appellant was the only person seen entering, staying, and
exiting the building. The lights in the apartment would turn
on shortly after he entered the garage area. His
fingerprint was found on the coffee grinder which was near
the other items used in the processing and sale of heroin,
along with $1,000 in cash and other drug paraphernalia.
{¶ 27} Finally, although appellant claimed that the
heroin belonged to a tenant, no evidence was found that
anyone else was actually living in the apartment. Nothing
indicated that anyone else had control over the premises
other than appellant. Therefore, the evidence presented at
appellant’s trial, when viewed in the light most favorable
to the prosecution, is sufficient to establish that
appellant had control over the premises and knowingly had
constructive possession of the heroin found in the garage
loft apartment.
{¶ 28} Accordingly, appellant’s first assignment of
error is not well-taken
II.
{¶ 29} In his second assignment of error, appellant
contends that the jury verdict was against the manifest
weight of the evidence.
{¶ 30} Under a manifest weight standard, an
appellate court sits as a “thirteenth juror” and may
disagree with the fact finder’s resolution of the
conflicting testimony. Thompkins, supra, at 387. The
appellate court, “‘reviewing 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 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.'” Id.,
quoting State v. Martin (1983), 20 Ohio App.3d 172, 175.
Additionally, the reversal must be by concurrence of all
three judges and the defendant is then granted a new trial.
Thompkins, supra, at 389.
{¶ 31} The only issue in contention in the present
case is whether the state linked appellant to the premises
to establish control over and constructive possession of
the heroin. Based on our discussion and review of
sufficiency, we conclude that it did. We cannot say that
the jury lost its way or that the verdict is against the
manifest weight of the evidence.
{¶ 32} Accordingly, appellant’s second assignment of
error is not well-taken.
III.
{¶ 33} In his third assignment of error, appellant
argues that the trial court erred when it sentenced him to
a non-minimum sentence based upon facts not alleged in the
indictment or admitted by appellant. In sentencing
appellant, the trial court stated that it found, “pursuant
to R.C. 2929.14(B) that the shortest prison term possible
would demean the seriousness of the offender’s conduct and
would not adequately protect the public and therefore
— and therefore find it’s necessary to impose a
greater term.”
{¶ 34} We conclude that the sentencing in this case
is controlled by the Supreme Court of Ohio’s decision in
State v. Foster, 109 Ohio St.3d. 1, 2006-Ohio-856, which
held that R.C. 2929.14(B) and R.C. 2929.14(E)(4) violate
the Sixth Amendment to the United States Constitution,
pursuant to Blakely v. Washington (2004), 542 U.S. 296, and
Apprendi v. New Jersey (2000), 530 U.S. 466. Having relied
on unconstitutional statutes when sentencing appellant, the
trial court erred and the sentence must be vacated. Foster,
supra, at — 103 and — 104.
{¶ 35} Accordingly, appellant’s third assignment of
error is found well-taken.
{¶ 36} The judgment of the Lucas County Court of
Common Pleas is affirmed in part, and reversed in part. The
case is remanded for resentencing consistent with this
decision. Appellant and appellee are each ordered to pay
one-half of the costs of this appeal pursuant to App.R. 24.
Judgment for the clerk’s expense incurred in preparation of
the record, fees allowed by law, and the fee for filing the
appeal is awarded to Lucas County.
JUDGMENT AFFIRMED, IN PART, AND REVERSED, IN PART.
A certified copy of this entry shall constitute the mandate
pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J., Mark L. Pietrykowski, P.J., George
M. Glasser, J. CONCUR.
Judge George M. Glasser, retired, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio.