State v. Silvas, 17-21-03

2021-Ohio-4473

STATE OF OHIO, PLAINTIFF-APPELLEE, v. CESAR L. SILVAS, DEFENDANT-APPELLANT.

No. 17-21-03

Court of Appeals of Ohio, Third District, Shelby

December 20, 2021

Appeal from Shelby County Common Pleas Court Trial Court No 20CR000102

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Peter Galyardt for Appellant.

Timothy S. Sell for Appellee

OPINION

WILLAMOWSKI, P.J.

{¶ 1} Defendant-appellant Cesar L. Silvas ("Silvas") appeals the judgment of the Shelby County Court of Common Pleas, arguing (1) that his convictions are against the manifest weight of the evidence (2) that his convictions are not supported by sufficient evidence; (3) that R.C. 2967.271 ("the Reagan Tokes Law") is unconstitutional; and (4) that the trial court erred in the process of sentencing him. For the reasons set forth below, the judgment of the trial court is affirmed in part and reversed in part.

Facts and Procedural History

{¶2} On March 24, 2020, Officer Jim Jennings ("Officer Jennings"), who works for the Sidney Police Department, was on patrol. Tr. 94. He observed a 2005 Acura ("Acura") pass by that did not have a front license plate and had a "high rear plate." Tr. 94. Doc. 1. Officer Jennings then ran the license plate and found that the Acura "was not valid to drive." Tr. 95. He then activated his lights to initiate a traffic stop near Exit 93 on Interstate 75. Tr. 95. However, Officer Jennings testified that the Acura did not pull over to the side of the road until they had passed Exit 94. Tr. 95.

{¶3} The driver of the Acura, who was later identified as Silvas, was accompanied by one passenger, who was later identified as a Mr. Lugo ("Lugo"). Tr. 114. When Officer Jennings approached the vehicle, Lugo opened his door. Tr. 96. Officer Jennings testified that, "[w]hen the door opened, I smelled the odor of marijuana." Tr. 96. Neither Silvas nor Lugo spoke English, but Officer Jennings managed to ask Silvas and Lugo for identification before calling for backup. Tr. 96-98. The driver's license tendered to Officer Jennings by Silvas was later examined and found to be a fake identification card. Tr. 98.

{¶4} Detective Ethan Brown ("Detective Brown") and Detective Mark Brunson responded to Officer Jennings's call for backup. Tr. 132-133. At this point, the police searched the Acura. Tr. 101. Officer Jennings found a marijuana cigarette in the ashtray. Tr. 101. The police then discovered four baggies in a compartment under "the carpet on the passenger side floorboard * * *." Tr. 101. One of the baggies contained a white powder that subsequent testing revealed to be cocaine. Tr. 103, 106. Ex. 1. The other baggies contained "blue pills stamped M and marked 30 * * *" that appeared to be "oxyco[n]tin or oxycodone." Tr. 103. However, subsequent testing revealed these blue pills to be composed of fentanyl that had been pressed into the shape of oxycontin. Tr. 109-110.

{¶5} On April 2, 2020, Silvas was indicted on one count of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2), a felony of the first degree; and on one count of possession of drugs in violation of R.C. 2925.11(A)(1), a felony of the fifth degree. Doc. 1. The count of aggravated trafficking in drugs carried three specifications: that Silvas was "a major drug offender"; that Silvas "used a 2005 Acura * * * in the commission or facilitation of the offense; and that the $1, 543.00 in Silvas's possession were "the proceeds of trafficking in drugs or other criminal activity." Doc. 1.

{¶6} On December 1, 2020, these charges were tried before a jury. Tr. 1. At trial, Silvas testified in his own defense, stating that he was driving the Acura to Fort Wayne, Indiana for a friend and that he was unaware of the concealed drugs in the vehicle. Tr. 155, 160, 168. On December 2, 2020, the jurors found Silvas guilty of both charges against him. Doc. 113. The jury also found that Silvas was a major drug offender and that he had used the 2005 Acura in the commission of this offense. Doc. 113. However, the jury did not find that the $1, 543.00 in Silvas's possession were the proceeds of drug trafficking or other criminal activity. Doc. 113.

{¶7} On January 19, 2021, the trial court issued its judgment entry of sentencing. Doc. 133. For his conviction of aggravated trafficking in drugs, the trial court sentenced Silvas "to serve an indefinite term of imprisonment * * * of a mandatory eleven (11) years minimum to sixteen and one-half (16.5) years maximum." Doc. 133. For his conviction for possession of drugs, the trial court imposed a prison term of twelve months to be served concurrently with his prison sentence for aggravated trafficking in drugs. Doc. 133.

{¶8} Silvas filed his notice of appeal on February 17, 2021. Doc. 149. On appeal, he raises the following four assignments of error:

First Assignment of Error

Cesar Silvas's drug convictions for aggravated trafficking and possession are not supported by the manifest weight of the evidence.

Second Assignment of Error

Cesar Silvas's drug convictions for aggravated trafficking and possession are not supported by sufficient evidence, and the trial court erred when it denied his Crim.R. 29 motion.

Third Assignment of Error

Ohio's sentencing scheme of potentially enhanced penalties for qualifying first and second degree felonies as administratively determined by the Department of Rehabilitation and Correction, which was applied to Cesar Silvas, is unconstitutional.

Fourth Assignment of Error

The trial court erred when it prohibited a sentence reduction for Cesar Silvas based upon a 'sexually-oriented-offense' conviction.

For the sake of analytical clarity, we will consider Silvas's second assignment of error before we consider his first assignment of error.

Second Assignment of Error

{¶9} Silvas argues that his convictions for aggravated trafficking in drugs and possession of drugs are not supported by sufficient evidence.

Legal Standard

{¶10} A challenge to the sufficiency of the evidence supporting a conviction "is a question of law and a 'test of adequacy rather than credibility or weight of the evidence.'" State v. Beaver, 3d Dist Marion No. 9-17-37, 2018-Ohio-2438, ¶ 40, quoting State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19. "The sufficiency-of-the-evidence analysis addresses the question of whether adequate evidence was produced for the case to be considered by the trier of fact and, thus, whether the evidence was 'legally sufficient to support the verdict * * *.'" State v. Luebrecht, 3d Dist. Putnam No. 12-18-02, 2019-Ohio-1573, ¶ 36, quoting State v. Worthington, 3d Dist. Hardin No. 6-15-04, 2016-Ohio-530, ¶ 12. On appeal, the applicable standard

is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.

State v. Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 27, quoting State v. Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 62 (3d Dist.).

{¶11} To prove the offense of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2), the State must establish that the offender

[1] knowingly * * * [2] prepare[d] for shipment, ship[ped], transport[ed], deliver[ed], prepare[d] for distribution, or distribute[d] [3] a controlled substance or a controlled substance analog, [4] when the offender kn[ew] or ha[d] reasonable cause to believe that the controlled substance or controlled substance analog [was] * * * intended for sale or resale by the offender or another person.

R.C. 2925.03(A)(2). 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] obtain[ed], possess[ed], or use[d] [3] a controlled substance or a controlled substance analog." R.C. 2925.11(A).

{¶12} "The issue of whether a person charged with drug possession knowingly possessed a controlled substance 'is to be determined from all the attendant facts and circumstances available.'" State v. Brooks, 3d Dist. Hancock No. 5-11-11, 2012-Ohio-5235, ¶ 45, quoting State v. Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998). R.C. 2901.22 defines knowingly as follows:

A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

R.C. 2901.22(B).

{¶13} R.C. 2925.01(K) defines "possession" as "having control over a thing or substance * * *." R.C. 2925.01(K). However, this provision further states that possession "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).

Possession of drugs can be either actual or constructive. [State v.] Cooper[, 3d Dist. Marion No. 9-06-49, 2007-Ohio-4937, ] * * * ¶ 25. See also State v. Wolery, 46 Ohio St.2d 316, 329 (1976), certiorari denied, 429 U.S. 932, 97 S.Ct. 339; State v. Haynes, 25 Ohio St.2d 264 (1971). "A person has 'actual possession' of an item if the item is within his immediate physical possession." State v. Williams, 4th Dist. No. 03CA2736, 2004-Ohio-1130, ¶ 23 citing State v. Fugate, 4th Dist. [Washington] No. 97CA2546 (Oct. 2, 1998). A person has 'constructive possession' if he is able to exercise

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