State v. Blevins

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[Cite as State v. Blevins, 2003-Ohio-5971.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 02CA2867 : vs. : : ANTHONY D. BLEVINS, : DECISION AND JUDGMENT ENTRY : Defendant-Appellant. : Released 11/3/03 : ___________________________________________________________ APPEARANCES: Joseph L. Hale, Portsmouth, Ohio, for Appellant. Lynn Alan Grimshaw, Scioto County Prosecuting Attorney, and R. Randolph Rumble, Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee. ___________________________________________________________ Harsha, J. {¶1} Anthony Blevins appeals his conviction for aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1)(c). He argues that his conviction is against the manifest weight of the evidence because the State failed to prove that his holding of OxyContin for a few seconds defined by R.C. 2925.01(K). constituted possession as Because the State need not prove that Appellant possessed the drug for any specific length of time and the evidence supports the jury s finding that Appellant 2 Scioto App. No. 02CA2867 had control over the OxyContin at least momentarily, we affirm Appellant s conviction. {¶2} In November 2000, Appellant entered Unlimited Home Medical Care and Pharmacy in Portsmouth, Ohio and tendered a prescription for OxyContin to the pharmacist. advised Appellant that the prescription The pharmacist would cost $301.97. Appellant stated that he needed to retrieve the money and would return to pick up the prescription. {¶3} After Appellant exited the pharmacy, the pharmacist contacted the office of Dr. Frederick Cohn, the physician who had allegedly written the prescription, because the pharmacist suspected the prescription was a forgery. The pharmacist learned that Dr. Cohn had not issued the prescription and then contacted the Portsmouth Police Department. {¶4} Two Enforcement officers Drug telephone call. assigned Task Force to the responded Southern to the Ohio pharmacist s The officers spoke with the pharmacist and then waited for Appellant to return to pick up the OxyContin. Appellant pharmacist returned for Law to the the pharmacy, prescription Appellant the OxyContin. and Appellant the paid pharmacist When the gave The officers then placed Appellant under arrest. {¶5} Appellant was charged with illegal processing of a drug document in violation of R.C. 2925.23(B)(1), and aggravated 3 Scioto App. No. 02CA2867 possession of drugs in violation of R.C. 2925.11(A)(C)(1)(c). In November 2002, a jury found Appellant guilty of both charges and the trial incarceration court for conviction and possession of sentenced the six Appellant to seventeen illegal processing of a years drugs incarceration conviction, for to be of error, drug the served months document aggravated consecutively. Appellant filed a timely appeal. {¶6} In that his his sole conviction assignment for aggravated possession against the manifest weight of the evidence. challenge his conviction for Appellant illegal of alleges drugs is Appellant does not processing of a drug document or the sentences imposed. {¶7} When considering an appellant s claim that a conviction is against the manifest weight of the evidence, our role is attains to determine the high whether degree the of evidence probative required of a criminal conviction. produced force sits, essentially, as a trial certainty State v. Getsy, 84 Ohio St.3d 180, 193, 1998-Ohio-533, 702 N.E.2d 866. court and at thirteenth The reviewing juror and [may] disagree[] with the fact finder s resolution of the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997- Ohio-52, 678 N.E.2d 541, quoting Tibbs v. Florida (1982), 457 U.S. 31, reviewing 42, 102 court S.Ct. must 2211, dutifully 2218, 72 examined L.Ed.2d the 652. entire The record, 4 Scioto App. No. 02CA2867 weighing the witnesses, evidence keeping in and mind considering that the credibility issue for the trier of fact to resolve. credibility generally is of an State v. Thomas (1982), 70 Ohio St.2d 79, 80, 434 N.E.2d 1356; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus, 227 N.E.2d 212. The appears reviewing that the court fact may reverse finder, in the conviction resolving if it evidentiary conflicts, clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. On the other hand, we will not reverse a conviction if the state presented substantial evidence upon which the trier of fact could reasonably conclude that all essential elements of the offense had been established beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, syllabus, 383 N.E.2d 132. {¶8} R.C. knowingly 2925.11(A) obtain, possess, provides or use that, a No person controlled shall substance. Appellant contends that the evidence does not support the jury s finding that he violated this statute because Appellant never had the requisite control over the OxyContin to have possessed the drug. Appellant contends that the evidence introduced at 5 Scioto App. No. 02CA2867 trial demonstrates that, at most, Appellant had the OxyContin in his hands for a few seconds.1 {¶9} R.C. 2925.01(K) defines possess or possession as having control over a thing inferred solely from mere or access substance, to the but thing may or not be substance through ownership or occupation of the premises upon which the thing or substance is found." The State correctly notes that R.C. 2925.11(A) does not require that an individual possess a controlled substance for any specified length of time. {¶10} The evidence introduced at trial demonstrates that Appellant paid the pharmacist and the pharmacist either handed the OxyContin to Appellant OxyContin up from the counter. or Appellant (Tr. at pp. 38, 62.) picked After this transaction occurred, the officers approached Appellant. at p. 38.) the (Tr. The pharmacist testified that Appellant s hands were on the counter when he was arrested, though he does not indicate whether Appellant was holding the medicine. (Tr. at p. 63.) Appellant contends that he had not yet retrieved the OxyContin from the counter when he was arrested. 1 (Tr. at pp. 138-139.) Although Appellant s assignment of error asserts that the jury s decision was against the manifest weight of the evidence, his arguments themselves reflect a sufficiency of the evidence claim. The relevant inquiry in reviewing such a claim 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, citing Jackson v. Virginia (1979), 443 U.S. 307. Under either a manifest weight or a sufficiency of the evidence inquiry, our conclusion is the same. 6 Scioto App. No. 02CA2867 However, both the officers testified that they did not arrest Appellant until he began to walk away from the counter and that he was holding the OxyContin. {¶11} While there (Tr. at pp. 51, 84-85, 94-95.) is a conflict in the witnesses' testimony, the evidence in this case clearly supports the jury s finding that Appellant possessed the OxyContin for at least a moment in time. There is no need for the State to prove that the possession lasted for any extended period. Therefore, the State satisfied its burden of proof at trial and Appellant s conviction is not against the manifest weight of the evidence. Appellant s sole assignment of error is overruled. JUDGMENT AFFIRMED. Evans, P.J., & Abele, J.: Concur in Judgment and Opinion.

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