State v. Johnson

1

2023-Ohio-2638

STATE OF OHIO, PLAINTIFF-APPELLEE, v. AMANDA JOHNSON, DEFENDANT-APPELLANT.

STATE OF OHIO, PLAINTIFF-APPELLEE, v. AMANDA JOHNSON, DEFENDANT-APPELLANT.

Nos. 3-22-51, 3-22-52

Court of Appeals of Ohio, Third District, Crawford

July 31, 2023

Appeals from Crawford County Common Pleas Court Trial Court Nos. 21-CR-0180 and 21-CR-0309

William T. Cramer for Appellant.

Daniel J. Stanley for Appellee

OPINION

WILLAMOWSKI, J.

{¶1} Defendant-appellant Amanda Johnson ("Johnson") appeals the judgments of the Crawford County Court of Common Pleas, alleging that the trial court gave incorrect jury instructions and that her convictions are against the manifest weight of the evidence. For the reasons set forth below, the judgments of the trial court are affirmed.

Facts and Procedural History

{¶2} On June 5, 2021 at roughly 3:17 A.M., Delvin Duffield ("Duffield") called 9-1-1 to report a domestic disturbance involving him and his girlfriend, Johnson. He stated that Johnson was using meth; that she was throwing things at him; and that he required assistance. Officer Deavon Wireman ("Officer Wireman") of the Bucyrus Police Department responded to this call, going to the house where Duffield and Johnson were then living together. At the scene, Duffield told Officer Wireman that Johnson had been using narcotics and that she had been calling him names. In this process, Duffield showed him a picture on his phone of Johnson using narcotics.

{¶3} Officer Wireman went upstairs with Duffield where he encountered Johnson. While Johnson denied using any narcotics, Officer Wireman observed a cut straw on a nightstand and a mirror with residue on it. However, this interaction was cut short when Officer Wireman received a dispatch indicating that another officer was in need of immediate assistance in apprehending a person who was fleeing from police custody. Officer Wireman then asked if Duffield and Johnson were able to "be civil, separate in each other's rooms * * *, and [that] they agreed to do so." (Tr. 137). At this point, Officer Wireman left to assist the other police officer.

{¶4} Roughly in between 11:45 P.M. on June 5, 2021 and 12:00 A.M. on June 6, 2021, Duffield called 9-1-1, reporting that he was worried that Johnson was using meth. In response, Johnson's probation officer, Tony Stover ("Stover"), went with Officer Jason Pennington ("Officer Pennington") and two other police officers to the house where Duffield was then living. When they arrived, the police found Sarah Lewis ("Lewis") and Noah Watkins ("Watkins") sleeping on the ground in the garage. Lewis was Johnson's sister, and Watkins was Lewis's boyfriend.

{¶5} The police discovered a loaded syringe beside Lewis and a syringe in Watkins's pocket. Stover and Officer Pennington then met Duffield and Johnson's mother at the front porch of the residence. Duffield was standing at the door and told the police that Johnson was not currently at home but was at a friend's house. Duffield then turned and began rushing up the stairs towards the second story of the house.

{¶6} As Duffield was going up the stairs, Stover "heard a loud bang" that sounded like something fell over on the second floor of the house. (Tr. 89). Duffield did not respond to commands to return to the first floor. For this reason, Stover and Officer Pennington followed him up the stairs where they encountered Johnson in her bedroom. She stated that she had directed Duffield to tell the police that she was not home because she did not want to go to jail.

{¶7} Stover then "observed several marijuana pipes * * * on one of the dressers" in Johnson's bedroom. (Tr. 90). Officer Pennington and Stover asked her if she had or used any illegal drugs. In response, Johnson stated that she did "marijuana and stuff." (Tr. 22). However, she also indicated several times that she only smoked marijuana and that "there were no other drugs." (Tr. 90).

{¶8} At this point, Stover noticed that a box fan was lying on its side next to the dresser in Johnson's bedroom. He thought that "someone might have been doing something with the dresser, and knocked the fan over." (Tr. 91). This could also explain the "loud bang" that he heard while Duffield was climbing the stairs. (Tr. 89). Stover went to this area of Johnson's bedroom and saw a purse stuck behind the dresser. As Stover retrieved this item from behind the dresser, he did not observe any cobwebs or dust on the purse.

{¶9} While examining the contents of the purse, Stover discovered a change purse that contained what appeared to be meth, several pills, and a baggie of marijuana. He also discovered "feminine hygiene products in the purse * * *." (Tr. 94). The purse also contained an Electronic Benefit Transfer Card, a debit card, and a credit card that had Johnson's name on them. While he found an identification card belonging to Duffield inside the purse, he did not find any other items that bore the name of a person other than Duffield or Johnson. Officer Pennington also discovered a digital scale, plastic baggies, and a metal container in Johnson's bedroom.

{¶10} At this point, Johnson was arrested and taken to the local jail. Stover later testified that he believed that did not seek a drug test in this situation because he viewed this as a drug possession case. Within one day of being taken into police custody, Johnson appeared before the trial court and was released on a personal recognizance bond. The contents of the change purse were sent to the Ohio Bureau of Criminal Investigation ("BCI") for testing and found to be methamphetamines and clonazepam.

{¶11} On June 8, 2021, Johnson was indicted on one count of aggravated possession of drugs in violation of R.C. 2529.11(A), a felony of the fifth degree, and one count of illegal use or possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree. This indictment became the basis of Case No. 21-CR-0180. On September 14, 2021, Johnson was indicted on one count of possession of drugs in violation R.C. 2925.11(A), a felony of the fifth degree.^[1] This indictment became the basis of Case No. 21-CR-0309.

{¶12} On November 10, 2022, the State filed a motion that requested Case No. 21-CR-0180 be joined with Case No. 21-CR-0309 for trial. The trial court subsequently granted this motion on November 14, 2022. A jury trial was held on these indictments on November 17-18, 2022. On November 18, 2022, the jurors returned verdicts of guilty on all three counts against Johnson. The trial court sentenced Johnson on November 22, 2022.

{¶13} Johnson filed her notices of appeal on December 15, 2022. On appeal, she raises the following two assignments of error:

First Assignment of Error

The trial court failed to properly instruct the jury on the issue of possession.

Second Assignment of Error

The convictions for drug possession were not supported by the weight of the evidence.

We will consider the second assignment of error before we consider the first assignment of error.

Second Assignment of Error

{¶14} Johnson argues that her two convictions for drug possession are against the manifest weight of the evidence.

Legal Standard

{¶15} The manifest weight of the evidence analysis examines whether the State has carried its burden of persuasion at trial. State v. Wilson, 2022-Ohio-504, 185 N.E.3d 176 ¶ 58 (3d Dist.). In this process, "an appellate court's function * * * is to determine whether the greater amount of credible evidence supports the verdict." State v. Harvey, 3d Dist. Marion No. 9-19-34, 2020-Ohio-329, ¶ 12, quoting State v. Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.). Accordingly, an "appellate court sits as a 'thirteenth juror' * * *." State v. Barga, 3d Dist. Shelby No. 17-17-14, 2018-Ohio-2804, ¶ 19, quoting State v. Thompkins, 78 Ohio St.3d 380, 388, 1997-Ohio-52, 678 N.E.2d 541, 547 (1997).

Appellate courts "must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder 'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'"

State v. Randle, 2018-Ohio-207, 104 N.E.3d 202, ¶ 36 (3d Dist.), quoting Plott at ¶ 73, quoting Thompkins at 387.

{¶16} "A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses." State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86, ¶ 38 (3d Dist.), quoting State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, ¶ 7. "Only in exceptional cases, where the evidence 'weighs heavily against the conviction,' should an appellate court overturn the trial court's judgment." State v. Little, 2016-Ohio-8398, 78 N.E.3d 323, ¶ 27 (3d Dist.), quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.

{¶17} To prove the offense of possession of drugs in violation of R.C. 2925.11(A), the State must establish that the offender "[1] knowingly [2] obtained], possessed], or use[d] [3] a controlled substance or a controlled substance analog." R.C. 2925.11(A). "Possession of drugs can be either actual or constructive." State v. Bustamante, 3d Dist. Seneca Nos. 13-12-26, 13-13-04, 2013-Ohio-4975, ¶ 25. "A person has 'actual possession' of an item if the item is within his immediate physical possession." State v. McClain, 2020-Ohio-1436, 153 N.E.3d 854, ¶ 45 (3d Dist.), quoting State v. Williams, 4th Dist. Ross No. 03CA2736, 2004-Ohio-1130, ¶ 23.

{¶18} "A person has constructive possession of an item when he is conscious of the presence of the object and able to exercise dominion...