Lenoir v. Warden, Richland Correctional Institution

Filing 13

REPORT AND RECOMMENDATIONS that petitioner's 1 Petition for Writ of Habeas Corpus claims be dismissed. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 12/22/2011. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Michael D. Lenoir,

:

Petitioner,
v.

:
:

Warden, Richland Correctional
Institution,
Respondent.

Case No. 2:11-cv-342

:

JUDGE PETER C. ECONOMUS
Magistrate Judge Kemp

:
:

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. 2254. This matter is before the Court on that petition,
respondent's return of writ, and petitioner's reply. For the reasons that follow, the
Magistrate Judge RECOMMENDS that petitioner's claims be DISMISSED.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Ohio State Highway Patrol Trooper Marcus Pirrone testified that on
July 4, 2009, around 7:00 a.m. he and Trooper Reggie Streicher were
observing traffic on Interstate I-71, milepost 121 when he observed a black
Cadillac, four-door sedan and a red Grand Cherokee Jeep approaching at
a high rate of speed. Trooper Pirrone mounted his motorcycle and began
pursuing the vehicles. Trooper Pirrone testified that the Cadillac
eventually stopped, however the Jeep slowed down to approximately five
or six miles per hour. The Jeep's driver stared at the Trooper, drove past
and then “just punched it.” (T. at 19). Trooper Pirrone gave a verbal
warning to the driver of the Cadillac and began to pursue the red Jeep.
Trooper Pirrone testified that he observed the driver of the Jeep through
the windshield as the vehicle approached him and then through the
passenger side window. Because the driver of the Jeep had slowed down,
Trooper Pirrone was able to see the face of the driver, whom he identified
as appellant.

{¶ 3} Trooper Pirrone observed appellant exit the highway and proceed
through a red light. The appellant proceeded through a second red light
and turned left onto Galena Road. Trooper Pirrone followed, but lost sight
of the Jeep. The trooper decided to double back. He was then able to
observe the Jeep parked in a driveway. Trooper Pirrone observed that a
yard ornament had been knocked over in the driveway. Further, the Jeep's
brake lights were on then went off. Appellant exited the Jeep and began to
run. Trooper Pirrone observed a “black sweatshirt or possibly a black
bag” in appellant's hand at the time he exited the Jeep. Trooper Pirrone
pursued the appellant who dropped the black object as he continued to
flee the officer. During this pursuit, the trooper called for back-up officers.
Trooper Pirrone decided to return to the Jeep, in case appellant decided to
double back, return to the Jeep and leave the area. Pictures from the scene
show a black object on the patio where Trooper Pirrone said he saw
appellant drop a black object.
{¶ 4} Additional troopers arrived to assist and stayed at the scene. No one
touched the sweatshirt on the ground until Sergeant Steven Click of the
Ohio State Highway Patrol verified the sweatshirt did not belong to the
homeowner. There were no civilians on the property when the troopers
initially arrived. Ms. Norman, the homeowner, did not come out of the
house until Sergeant Click knocked on her door.
{¶ 5} Sergeant Click retrieved the black sweatshirt from the area where
Trooper Pirrone indicated that appellant had dropped a black object.
Sergeant Click picked up the sweatshirt after ascertaining that it did not
belong to the homeowner and a baggie of a material fell out onto the
patio. Sergeant Click believed the material was an illegal drug and
secured the baggie in his motorcycle. The baggie of material was analyzed
and found to weigh 100.07 grams and was a mixture of heroin and
cocaine.
{¶ 6} The homeowner, Sharon Norman, testified that the black sweatshirt
was not hers, that she did not own a black sweatshirt and that there was
no black sweatshirt on her patio when she went to bed the evening before
at approximately 12:00 am, 1:00 am.
{¶ 7} When the back-up officers arrived, Trooper Pirrone returned to the
foot pursuit. During the pursuit, one of the back-up officers contacted
Trooper Pirrone to advise that the officers discovered crack cocaine inside
the Jeep and a bag of what appeared to be drugs inside the black
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sweatshirt Trooper Pirrone saw appellant drop.
{¶ 8} Appellant ran into a wooden area and attempted to hide from the
officers underneath some brush. The canine officer located appellant.
After refusing to come out, the officer released his dog. Appellant
subsequently surrendered. When the officers located appellant, appellant,
admitted that the crack cocaine found inside the Jeep belonged to him. He
stated, “The small crack in the car, that one is mine.” (T. at 33).
{¶ 9} The jury found appellant guilty of the following three offenses: (1)
second-degree felony cocaine possession, in violation of R.C. 2925.11(A)
and (C)(4)(d); (2) first-degree felony heroin possession, in violation of R.C.
2925.11(A) and (C)(6)(e); and (3) fifth-degree felony crack cocaine
possession, in violation of R.C. 2925.11(A) and (C)(4)(a).
{¶ 10} At the sentencing hearing, the state elected to proceed to sentencing
on the first-degree felony heroin possession count. The court then
sentenced appellant to a mandatory five-year prison term for this offense
and to an eight-month prison term for the crack cocaine possession
offense. The court ordered appellant to serve the prison terms
consecutively. In accordance with R.C. 2941.25, the trial court did not
impose a sentence for the second-degree felony cocaine possession
offense.
State v. Lenoir, 2010 WL 3921188 (5th Dist. October 5, 2010).
On January 26, 2010, petitioner, through counsel, timely filed a notice of appeal
to the Fifth District Court of Appeals. Exhibit 6 to Return of Writ. Represented by new
counsel, he raised the following five assignments of error:
1.

The trial court erred by admitting evidence regarding the
sweatshirt and the cocaine-heroin mixture when the state failed to
establish an adequate chain of custody.

2.

The trial court erred by overruling Appellant’s motion for
judgment of acquittal regarding the second-degree felony
cocaine possession offense and the first-degree felony
heroin possession offense when the state failed to present
sufficient evidence that Appellant knowingly possessed an
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amount of cocaine equal to or exceeding 100 grams and an
amount of heroin equal to or exceeding 50 grams.
3.

The jury verdicts convicting Appellant of second-degree felony
cocaine possession and first-degree felony heroin possession
are against the manifest weight of the evidence because the
state did not present any competent, credible evidence that
Appellant knowingly possessed more than 100 grams of cocaine
and more than 50 grams of heroin.

4.

The trial court erred by imposing consecutive terms of
imprisonment without making any findings to support
consecutive sentences and without providing any reasoning to
support its decision to impose consecutive sentences.

5.

The trial court erred by imposing a five-year prison sentence for
the heroin offense.

Exhibit 7 to Return of Writ
On October 5, 2010, the Fifth District Court of Appeals affirmed petitioner’s
conviction. Exhibit 9 to Return of Writ. On November 9, 2010, petitioner, through
additional new counsel filed a notice of appeal to the Ohio Supreme Court. Exhibit 10 to
Return of Writ. Petitioner presented the following proposition of law:
1.

To obtain two or more higher-level felony convictions in a
drug-possession prosecution involving a single mixture
containing cocaine and heroin, the state must prove the
amount of each drug contained in the mixture.

On February 16, 2011, the Ohio Supreme Court denied leave to appeal and dismissed
petitioner’s case as not involving any substantial constitutional question. Exhibit 13 to
Return of Writ.
On April 22, 2011, petitioner, proceeding pro se, filed the instant petition for a

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writ of habeas corpus pursuant to 28 U.S.C. §2254. He alleges that he is in the custody
of the respondent in violation of the Constitution of the United States based upon the
following grounds raised on the face of the petition, and set forth as follows:
Ground One: The conviction is against the sufficiency of the evidence.
Supporting FACTS: The State did not prove the amount of each
individual drug involved. Though the mixture of the two drugs exceeds
one-hundred grams, there is no evidence as to the amount of each
individual drug involved. Accordingly, the evidence does not support a
conviction for a first degree felony.
It is the position of respondent that petitioner’s claim was not fairly presented or
fails on its merits.
FAIR PRESENTATION
The issue of fair presentation recently was addressed at some length by
the Sixth Circuit in Houston v. Waller, 420 Fed.Appx. 501 (6th Cir. 2011). As the
Court explained,
“the substance of a federal habeas corpus claim must first be presented to
the state courts.” Picard, 404 U.S. at 278, 92 S.Ct. 509. Determining when a
claim has been “fairly presented” is contextual and individual to each
case. In some instances, simply presenting the facts, without also
presenting “the constitutional claim ... inherent in those facts” is
insufficient. Id. at 277, 92 S.Ct. 509. In others, however, “the ultimate
question for disposition will be the same despite variations in the legal
theory or factual allegations urged in its support.” Id. (internal *510
quotations and citations omitted); Jells v. Mitchell, 538 F.3d 478, 504 (6th
Cir.2008) (“To present a claim fairly, it is sufficient if the substance of the
claim was presented to the state courts, such that the ultimate question
would have been the same despite variations in the legal theory or factual
allegations urged in its support.”). It is “not enough ... that a somewhat
similar state-law claim was made,” Anderson v. Harless, 459 U.S. 4, 6, 103
S.Ct. 276, 74 L.Ed.2d 3 (1982), nor is it sufficient to raise general allegations
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of the denial of rights to a fair trial and due process because they do not
fairly present claims that specific constitutional rights were violated.
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.2000); see Katt v. Lafler, 271
Fed.Appx. 479, 481 (6th Cir.2008) (finding claim that admission of hearsay
“violated the rules of evidence [and] denied [the petitioner's]
constitutional rights to due process and a fair trial. US Const, Ams V, VI,
XIV” not sufficient for fair presentation). This does not mean, however,
that a petitioner need have “recite[d] book and verse on the federal
constitution.” Abshear v. Moore, 354 Fed.Appx. 964, 967 (6th Cir.2009)
(quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir.2003)).
Recognizing that “[a] claim may only be considered ‘fairly
presented’ if the petitioner asserted both the factual and legal basis for his
claim to the state courts,” in McMeans, this Court reiterated that there are
four actions a defendant can take which are significant to the
determination whether a claim has been “fairly presented”: (1) reliance
upon federal cases employing constitutional analysis; (2) reliance upon
state cases employing federal constitutional analysis; (3) phrasing the
claim in terms of constitutional law or in terms sufficiently particular to
allege a denial of a specific constitutional right; or (4) alleging facts well
within the mainstream of constitutional law. McMeans, 228 F.3d at 681
(citing Franklin v. Rose, 811 F.2d 322, 326 (6th Cir.1987)).
In Franklin, 811 F.2d at 326, this Court quoted Daye v. Attorney
General, 696 F.2d 186 (2d Cir.1982) (en banc ), for the four factors to be
considered in assessing whether there has been a fair presentation. In
Daye, after noting that “[t]he chief purposes of the exhaustion doctrine
would be frustrated if the federal habeas court were to rule on a claim
whose fundamental legal basis was substantially different from that
asserted in state court,” the court explained:
By the same legal “basis” or “doctrine,” we do not mean that there
can be no substantial difference in the legal theory advanced to explain an
alleged deviation from constitutional precepts. For example, constitutional
doctrine forbids use of a confession against a defendant unless the
confession was voluntary. A number of legal theories may be advanced as
to why a confession was not voluntary. Yet all that is needed to alert the
state courts to the constitutional nature of the claim is the exposition of the
material facts and the assertion that the confession was not voluntary.
Daye, 696 F.2d at 192 n. 4.

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Id. at 509-510.
Here, respondent argues that petitioner presented his sufficiency of the evidence
claim on direct appeal only as a violation of state law. According to respondent,
petitioner cited only to Jackson v. Virginia, 443 U.S. 307 (1979), and otherwise argued his
insufficiency of the evidence claim entirely in terms of Ohio statutory law in asserting
that the State failed to demonstrate the precise concentrations of each controlled
substance in the heroin-cocaine mixture. In his traverse, petitioner asserts that he
“attacked his constitutional right to the sufficiency of the evidence” in his second
assignment of error. Further, he contends that, although the proposition of law he
raised before the Ohio Supreme Court did not mirror directly the language of his
assignment of error, it was sufficient to raise a sufficiency of the evidence claim.
It is well-established that a claim that there was insufficient evidence on which to
convict states a claim for relief under the Fourteenth Amendment for the denial of due
process. Jackson, supra. While, as respondent contends, petitioner did not argue
explicitly his second assignment of error in terms of the United States Constitution or
cite the Fourteenth Amendment, he did assert the deprivation of his right to due
process and the state appellate court reviewed his sufficiency of the evidence claim
under the standard of State v. Jenks, 61 Ohio St.3d 259 (1991). Jenks is an Ohio Supreme
Court decision adopting Jackson into Ohio law. See Rampey v. Wilson, 2009 WL 161344 at
*17 (N.D. Ohio January 22, 2009) (“Jenks states clearly established federal law as to the
sufficiency of the evidence”). Further, although petitioner’s proposition of law raised
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before the Ohio Supreme Court did not specify any constitutional deprivation, the
argument in support addresses the issue of the sufficiency of the evidence used to
convict petitioner of first and second-degree felony possession. Under this
circumstance, the Court cannot conclude that petitioner failed to fairly present a
constitutional claim before the state courts as it relates to the sufficiency of the evidence.
Consequently, the Court will now address the merits of petitioner’s claim.
STANDARD OF REVIEW
The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L.
104-132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry v.
Johnson, 532 U.S. 782, 791, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Wilson v. Parker, 515 F.3d
682, 691 (6th Cir.2008). AEDPA imposes a "highly deferential standard for evaluating
state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d
481 (1997), and "demands that state-court decisions be given the benefit of the doubt,"
Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam ).
Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)(footnote omitted) .
When the claims presented in a habeas corpus petition have been presented to
and decided by the state courts, a federal habeas court may not grant relief unless the
state court's decision was contrary to or an unreasonable application of clearly
established federal law, or based on an unreasonable determination of the facts in light
of the evidence that was presented. 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
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custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
As the Supreme Court has explained, "an unreasonable application of federal law
is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362,
410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Harbison v. Bell, 408 F.3d 823, 829 (6th
Cir. 2005). Indeed, "a federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly." Id., at 411, 120 S.Ct.
1495. Rather, that application must be "objectively unreasonable." Id., at 409, 120 S.Ct.
1495. This distinction creates "a substantially higher threshold" for obtaining relief than
de novo review. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836
(2007). The Court will apply this standard to petitioner's claim.
CLAIM ONE
As discussed above, petitioner’s only ground for relief in his habeas petition is
that there was insufficient evidence to support his conviction for a first-degree felony
because the State did not prove the precise amount of each individual drug contained in
the mixture recovered from the sweatshirt. Although the petition itself does not contain
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much in the way of discussion, petitioner’s traverse explains his position in much
greater detail. In his traverse, petitioner characterizes his ground for relief as a claim
that there was insufficient evidence to convict him on Count One - knowingly
obtaining or possessing cocaine in an amount equal to or exceeding 100 grams, a second
degree felony or on Count Two - knowingly obtaining or possessing heroin in an
amount equal to or exceeding 100 grams, a first degree felony. Petitioner notes that he
is not challenging his conviction on Count Three relating to possession of crack cocaine.
Although petitioner has characterized his ground for relief as relating to
insufficient evidence for his conviction on both Counts One and Two, the Court reads
his traverse as raising the following issues. Petitioner’s argument directed to Count
Two - possession of heroin - appears to be that the state trial court lacked jurisdiction,
and his conviction is null and void, because the language used in the indictment was
not the precise language of the statute. Petitioner extends this argument to contend
that, because the State combined Count One into Count Two, he was sentenced
improperly. Only as an alternative to finding that the error in the indictment with
respect to Count Two has resulted in his constitutionally invalid conviction does
petitioner set forth his sufficiency of the evidence argument in any detail. Further, in
setting forth this argument, petitioner focuses primarily on the evidence relating to his
conviction on Count One - possession of cocaine in an amount sufficient to be a second
degree felony - and the Count on which petitioner was not sentenced. Lenoir, 2010 WL
3921188 at *2. This is so, despite petitioner’s framing of his ground for relief as relating
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to his conviction for a first degree felony, which, as the record confirms, was petitioner’s
conviction for possession of 100.07 grams of heroin.
Before the Court addresses petitioner’s sufficiency of the evidence claim, which
he has raised pro se and which, accordingly, the Court will construe liberally, see
Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985), the Court will address briefly petitioner’s
issue relating to the indictment. Initially, the Court notes that this issue is raised for the
first time in the traverse and does not appear to have been raised before the state
appellate court. As a result, any claim relating to the indictment would be procedurally
defaulted or waived. Aside from these issues, however, such a claim simply is not
cognizable in federal habeas corpus. See Roe v. Baker, 316 F.3d 557, 570 (6th Cir. 2002)
(“Beyond notice, a claimed deficiency in a state criminal indictment is not cognizable on
federal collateral review.”); see also Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986)(an
indictment requires “sufficient information to provide petitioner with notice and the
opportunity to defend and protect himself against future prosecution for the same
offense. Any other deficiencies ... are solely matters of state law and so not cognizable
in a federal habeas proceeding.”) Here, petitioner is not claiming that he received
inadequate notice of the charge in Count Two relating to heroin possession. Rather,
petitioner is asserting that the indictment with respect to Count Two identified heroin
as a Class II controlled substance rather than a Class I substance as set forth in the
statute. Further, petitioner contends that the amount of heroin was identified as 100
grams in the indictment while the statute states “50 to 200 grams.” These are precisely
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the types of deficiencies which are matters of state law and are not cognizable before
this Court. Consequently, to the extent that petitioner may be asserting any claim
relating to the indictment on Count Two, he cannot prevail.
Turning now to petitioner’s claim regarding the sufficiency of the evidence as it
relates to Count One, Count Two, or both, the state appellate court addressed the issue
in the following way.
{¶ 26} Because appellant's second and third assignments of error each
require us to review the evidence, we shall address the assignments
collectively.
{¶ 27} In his second assignment of error appellant alleges that the trial
court erred in not granting his Crim. R. 29 motion for acquittal at the
conclusion of the state's case. In determining whether a trial court erred in
overruling an appellant's motion for judgment of acquittal, the reviewing
court focuses on the sufficiency of the evidence. See, e.g., State v. Carter
(1995), 72 Ohio St.3d 545, 553, 651 N.E.2d 965, 974; State v. Jenks (1991), 61
Ohio St.3d 259 at 273, 574 N.E.2d 492 at 503.
{¶ 28} In his third assignment of error appellant maintains that his
conviction is against the sufficiency of the evidence and against the
manifest weight of the evidence, respectively.
{¶ 29} The function of an appellate court on review is to assess the
sufficiency of the evidence “to determine whether such evidence, if
believed, would convince the average mind of the defendant's guilt
beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574
N.E.2d 492, paragraph two of the syllabus. In making this determination, a
reviewing court must view the evidence in the light most favorable to the
prosecution. Id.; State v. Feliciano (1996), 115 Ohio App.3d 646, 652, 685
N.E.2d 1307, 1310-1311.
{¶ 30} While the test for sufficiency requires a determination of whether
the state has met its burden of production at trial, a manifest-weight
challenge questions whether the state has met its burden of persuasion.
State v. Thompkins (1997), 78 Ohio St.3d 380, 390, 678 N.E.2d 541, 548-549
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(Cook, J., concurring). In making this determination, we do not view the
evidence in the light most favorable to the prosecution. Instead, we must
“review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses and determine whether, in
resolving conflicts in the evidence, the Trier of fact 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. Thompkins, supra, 78 Ohio St.3d
at 387, 678 N.E.2d 541. (Quoting State v. Martin (1983), 20 Ohio App.3d
172, 175, 485 N.E.2d 717, 720-721). Accordingly, reversal on manifest
weight grounds is reserved for “the exceptional case in which the
evidence weighs heavily against the conviction.” State v. Thompkins, supra.
In State v. Thompkins, supra the Ohio Supreme Court further held “[t]o
reverse a judgment of a trial court on the basis that the judgment is not
sustained by sufficient evidence, only a concurring majority of a panel of a
court of appeals reviewing the judgment is necessary .” 78 Ohio St.3d 380,
678 N.E.2d 541 at paragraph three of the syllabus.
{¶ 31} Employing the above standard, we believe that the state presented
sufficient evidence from which a jury could conclude, beyond a
reasonable doubt, that appellant committed the offenses of possession of
cocaine a second-degree felony, possession of heroin a first-degree felony
and possession of crack cocaine a fifth-degree felony.
{¶ 32} R.C. 2925.01(K) defines possession as follows: “ ‘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. 2901.21 provides the requirements for criminal
liability and provides that possession is a “voluntary act if the possessor
knowingly procured or received the thing possessed, or was aware of the
possessor's control of the thing possessed for sufficient time to have ended
possession.” R.C. 2901.21(D)(1).
{¶ 33} Possession may be actual or constructive. State v. Haynes (1971), 25
Ohio St.2d 264, 267 N.E.2d 787; State v. Hankerson (1982), 70 Ohio St.2d 87,
434 N.E.2d 1362, syllabus. To establish constructive possession, the
evidence must prove that the defendant was able to exercise dominion
and control over the contraband. State v. Wolery (1976), 46 Ohio St.2d 316,
332, 348 N.E.2d 351. Dominion and control may be proven by
circumstantial evidence alone. State v. Trembly, 137 Ohio App.3d 134, 738
N.E.2d 93. Circumstantial evidence that the defendant was located in very
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close proximity to readily usable drugs may show constructive
possession. State v. Barr (1993), 86 Ohio App.3d 227, 235, 620 N.E.2d 242,
247-248; State v. Morales, 5th Dist. No.2004 CA 68, 2005-Ohio-4714 at ¶ 50;
State v. Moses, 5th Dist. No.2003CA00384, 2004-Ohio-4943 at ¶ 9.
Ownership of the drugs need not be established for constructive
possession. State v. Smith, 9th Dist. No. 20885, 2002-Ohio-3034, at ¶ 13,
citing State v. Mann, (1993) 93 Ohio App.3d 301, 308, 638 N.E.2d 585.
Furthermore, possession may be individual or joint. Wolery, 46 Ohio St.2d
at 332, 348 N.E.2d 351.
{¶ 34} If the state relies on circumstantial evidence to prove an essential
element of an offense, it is not necessary for “ ‘such evidence to be
irreconcilable with any reasonable theory of innocence in order to support
a conviction.’ “ State v. Jenks (1991), 61 Ohio St.3d 259, 272, 574 N.E.2d 492
at paragraph one of the syllabus. “ ‘Circumstantial evidence and direct
evidence inherently possess the same probative value[.]’ “ Jenks, 61 Ohio
St.3d at paragraph one of the syllabus. Furthermore, “ ‘[s]ince
circumstantial evidence and direct evidence are indistinguishable so far as
the jury's fact-finding function is concerned, all that is required of the jury
is that i[t] weigh all of the evidence, direct and circumstantial, against the
standard of proof beyond a reasonable doubt.’ “ Jenks, 61 Ohio St.3d at
272, 574 N.E.2d 492. While inferences cannot be based on inferences, a
number of conclusions can result from the same set of facts. State v. Lott
(1990), 51 Ohio St.3d 160, 168, 555 N.E.2d 293, citing Hurt v. Charles J.
Rogers Transp. Co. (1955), 164 Ohio St. 329, 331, 130 N.E.2d 820. Moreover,
a series of facts and circumstances can be employed by a jury as the basis
for its ultimate conclusions in a case. Lott, 51 Ohio St.3d at 168, 555 N.E.2d
293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.
{¶ 35} Upon a careful review of the record and upon viewing the direct
and circumstantial evidence in the light most favorable to the prosecution,
this Court cannot conclude that the jury lost its way and created a
manifest miscarriage of justice when it found appellant guilty of the
possession of drugs offenses.
{¶ 36} Appellant admitted ownership of the crack cocaine found inside the
Jeep. Accordingly, appellant's conviction for possession of crack cocaine a
fifth-degree felony is supported by sufficient evidence and is not against
the manifest weight of the evidence.
{¶ 37} A reasonable juror could have found that, at the least, appellant had
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dominion and control over and constructive possession of the vehicle
containing the drugs, and that he had knowledge of drugs found inside
the sweatshirt. See Hankerson, 70 Ohio St.2d at syllabus. Thus, appellant
could have exercised dominion and control over the sweatshirt and the
contents of the sweatshirt. See, e.g., State v. King (Sept. 18, 1996), 9th Dist.
No. 95CA006173.
{¶ 38} Whether a person acts knowingly can only be determined, absent a
defendant's admission, from all the surrounding facts and circumstances,
including the doing of the act itself.” State v. Huff (2001), 145 Ohio App.3d
555, 563, 763 N.E.2d 695. (Footnote omitted.) Thus, “[t]he test for whether
a defendant acted knowingly is a subjective one, but it is decided on
objective criteria.” State v. McDaniel (May 1, 1998), Montgomery App. No.
16221, (citing State v. Elliott (1995), 104 Ohio App.3d 812, 663 N.E.2d 412).
{¶ 39} “A fundamental premise of our criminal trial system is that ‘the jury
is the lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973)
(emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310
(1974). Determining the weight and credibility of witness testimony,
therefore, has long been held to be the ‘part of every case [that] belongs to
the jury, who are presumed to be fitted for it by their natural intelligence
and their practical knowledge of men and the ways of men.’ Aetna Life Ins.
Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)”.
United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267,
140 L.Ed.2d 413.
{¶ 40} Appellant cross-examined the witnesses and argued that he had no
knowledge that the substance was concealed within the sweatshirt.
Appellant further argued that the state failed to prove the sweatshirt was
not tampered with during the time it was left unattended. Further,
appellant argued that he did not drop the sweatshirt. However, the
weight to be given to the evidence and the credibility of the witnesses are
issues for the Trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, 552
N.E.2d 180, certiorari denied (1990), 498 U.S. 881, 111 S.Ct. 228, 112
L.Ed.2d 183.
{¶ 41} The jury was free to accept or reject any and all of the evidence
offered by the parties and assess the witness's credibility. “While the jury
may take note of the inconsistencies and resolve or discount them
accordingly * * * such inconsistencies do not render defendant's conviction
against the manifest weight or sufficiency of the evidence”. State v. Craig
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(Mar. 23, 2000), Franklin App. No. 99AP-739, citing State v. Nivens (May
28, 1996), Franklin App. No. 95APA09-1236 Indeed, the jurors need not
believe all of a witness' testimony, but may accept only portions of it as
true. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶ 21,
citing State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548.; State v.
Burke, Franklin App. No. 02AP1238, 2003-Ohio-2889, citing State v.
Caldwell (1992), 79 Ohio App.3d 667, 607 N.E.2d 1096. Although the
evidence may have been circumstantial, we note that circumstantial
evidence has the same probative value as direct evidence. State v. Jenks
(1991), 61 Ohio St.3d 259, 574 N.E.2d 492.
{¶ 42} After reviewing the evidence, we cannot say that this is one of the
exceptional cases where the evidence weighs heavily against the
convictions. The jury did not create a manifest injustice by concluding that
appellant was guilty of the crimes of possession of cocaine a
second-degree felony, possession of heroin a first-degree felony and
possession of crack cocaine a fifth-degree felony.
{¶ 43} We conclude the Trier of fact, in resolving the conflicts in the
evidence, did not create a manifest injustice to require a new trial. The jury
heard the witnesses, evaluated the evidence, and was convinced of
appellant's guilt.
{¶ 44} Appellant next argues that the state failed to prove either the
amount of cocaine or the amount of heroin contained within the mixture
necessary to elevate the penalty for the offense to either a second degree
felony [cocaine] or a first degree felony [heroin].
{¶ 45} When it comes to enhancing the penalty, the Supreme Court has
stated that the statutory hierarchy of penalties based upon the identity
and amount of the drug presupposes that a detectable amount of a
controlled substance is present within the substance before the penalty
enhancement applies. State v. Chandler, 109 Ohio St.3d 223, 846 N.E.2d
1234, 2006-Ohio-2285, ¶ 18. In that case, the defendants pretended to sell
crack but actually delivered only baking soda. They were convicted of
drug trafficking and received the highest penalty enhancement for
offering to sell more than 100 grams of crack cocaine. Id. at ¶ 19, 846
N.E.2d 1234.
{¶ 46} The Supreme Court determined that the defendants' convictions of
drug trafficking could stand because they offered to sell drugs in violation
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of R.C. 2925.03(A)(1), regardless of whether actual drugs were involved.
Id. at ¶ 9, 846 N.E.2d 1234, 69 Ohio St.2d 445, 432 N.E.2d 802. However,
the Court reversed the penalty enhancement, ruling that the state was
required to prove the identity of the substance as well as a detectable
amount of that substance, not for conviction but to impose the penalty
enhancement. Id. at ¶ 16, 432 N.E.2d 802. In formulating its rationale, the
Supreme Court noted that by the terms of the penalty provisions in R.C.
2925.03(C), the substance must be or contain the drug alleged. Id. at ¶ 18,
432 N.E.2d 802. “This language presumes that a detectable amount of
cocaine is present within the substance before the penalty enhancement
applies.” Id. The Court reiterated that the statute is clear that a “substance
offered for sale must contain some detectable amount of the relevant
controlled substance” before a person can be sentenced under a penalty
enhancement such as R.C. 2925.03(C)(4)(g). Id. at ¶ 21, 432 N.E.2d 802.
{¶ 47} In the case at bar, R.C. 2925.11(C)(4) [Cocaine] and 2925.11(C)(6)
[Heroin] are identical in wording to the provisions of R.C. 2925.03(C)
construed by the Supreme Court in Chandler. Hence, the concentration of
cocaine or heroin is not dispositive. Rather, it is the mere presence of
cocaine or heroin in combination with a mixture, compound, preparation
or substance that is controlling.
{¶ 48} In the case at bar, expert testimony was presented by the state that
the mixture recovered from the sweatshirt contained both cocaine and
heroin. (T. at 125). Further, the substance weighed 100.07 grams. (Id. at
125, 432 N.E.2d 802). Thus, sufficient, credible evidence supports the
penalty enhancing provisions of R.C. 2925.11(C).
{¶ 49} Accordingly, appellant's second and third assignments of error are
denied.
Before a criminal defendant can be convicted consistent with the United States
Constitution, there must be sufficient evidence to justify a reasonable trier of fact to find
guilt beyond a reasonable doubt. Jackson v. Virginia, supra, 443 U.S. at 319, 99 S.Ct. 2781.
To determine whether the evidence was sufficient to support a conviction, this Court
must view the evidence in the light most favorable to the prosecution. Wright v. West,

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505 U.S. 277, 296, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (citing Jackson, at 319, 99 S.Ct.
2781). The prosecution is not affirmatively required to “rule out every hypothesis except
that of guilt.” Id. (quoting Jackson, at 326, 99 S.Ct. 2781). “[A] reviewing court ‘faced with
a record of historical facts that supports conflicting inferences must presume—even if it
does not affirmatively appear in the record—that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that resolution.’ ” Id. (quoting
Jackson, at 326, 99 S.Ct. 2781). For example the trier of fact is entitled to disbelieve a
defendant's uncorroborated and confused testimony, and even to discount a
defendant's credibility on account of a prior felony conviction. Id.
The reviewing court does not reweigh the evidence or redetermine
the credibility of the witnesses whose demeanor has been observed by the
finder of fact. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed.
680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d
646 (1983); Kines v. Godinez, 7 F.3d 674, 678 (7th Cir. 1993). Determination
of the credibility of a witness is within the sole province of the finder of
fact and is not subject to review. United States v. Saunders, 886 F.2d 56 (4th
Cir. 1989). The habeas court does not substitute its judgment for that of the
finder of fact. United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995).
The habeas court must review all of the evidence in the record and
determine whether a reasonable jury could have found guilt beyond a
reasonable doubt. “The evidence must afford a substantial basis from
which a fact in issue can reasonably be inferred.” Spalla v. Foltz, 615
F.Supp. 224, 227 (E.D.Mich. 1985). Circumstantial evidence from which a
reasonable inference of guilt beyond a reasonable doubt may be drawn is
constitutionally sufficient. Id.; see also Evans–Smith v. Taylor, 19 F.3d 899,
909 (4th Cir. 1994) ( “circumstantial evidence need not exclude every
reasonable hypothesis of innocence. Rather ‘circumstances altogether
inconclusive, if separately considered, may, by their number and joint
operation ... be sufficient to constitute conclusive proof.’ ” (quoting
Stamper v. Muncie, 944 F.2d 170, 174 (4th Cir. 1991)).

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Alder v. Burt, 240 F.Supp.2d 651, 661 (E.D. Michigan 2003).
Further, there is a “double layer” of deference due to state court determinations
about the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d 191, 205
(6th Cir. 2009), deference is due to the jury's finding of guilt because the substantive
standard, announced in Jackson v. Virginia, is whether “viewing the trial testimony and
exhibits in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” In addition,
even if a de novo review of the evidence leads to the conclusion that no rational trier of
fact could have so found, a federal habeas court “must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.” See also White v.
Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a substantial hurdle for a habeas corpus
petitioner to overcome, and petitioner has not done so here.
Although the state court of appeals did not cite directly to Jackson v. Virginia, as
discussed above, it drew its sufficiency of the evidence standard from State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), which, in turn, relied on Jackson. Thus, it is clear
that the state court applied the proper standard under federal law. The only question is
whether its application of that standard to the facts of this case was unreasonable.
As is relevant here, petitioner was convicted of second-degree felony cocaine
possession, in violation of R.C. 2925.11(A) and (C)(4)(d) and first-degree felony heroin
possession, in violation of R.C. 2925.11(A) and (C)(6)(e). The crux of petitioner’s claim
appears to be a challenge to the sufficiency of the evidence relating to the amount of the
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drug involved. While petitioner argues in terms of cocaine, there is some indication
from his petition that he intends this argument to encompass the amount of heroin as
well. The provisions of R.C. 2925.11, considered to be penalty enhancing provisions
and the focus of petitioner’s claim, provide as follows:
(4) If the drug involved in the violation is cocaine or a compound,
mixture, preparation, or substance containing cocaine, whoever violates
division (A) of this section is guilty of possession of cocaine. The penalty
for the offense shall be determined as follows:
...
d) If the amount of the drug involved equals or exceeds twenty
grams but is less than twenty-seven grams of cocaine, possession of
cocaine is a felony of the second degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a felony of
the second degree.
...
6) If the drug involved in the violation is heroin or a compound,
mixture, preparation, or substance containing heroin, whoever violates
division (A) of this section is guilty of possession of heroin. The penalty
for the offense shall be determined as follows:
...
(e) If the amount of the drug involved equals or exceeds five
hundred unit doses but is less than two thousand five hundred unit
doses or equals or exceeds fifty grams but is less than two hundred fifty
grams, possession of heroin is a felony of the first degree, and the court
shall impose as a mandatory prison term one of the prison terms
prescribed for a felony of the first degree.
In its decision, the state appellate court relied on State v. Chandler, 109 Ohio St.3d
223 (2006), an Ohio Supreme Court case interpreting R.C. §2925.03(A)(1). As the state
appellate court noted, the penalty enhancing statute before the Court in Chandler
contained language identical to the penalty enhancing statute applicable to petitioner’s
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case, R.C. §2925.11(C)(4) for cocaine and §2925.11(C)(6) for heroin, as set forth above. In
Chandler, the Ohio Supreme Court held that the state was required to prove the identity
of the substance and a detectable amount. Based on this holding in Chandler, the state
appellate court, in upholding petitioner’s conviction and penalty enhancement,
concluded that the concentration of the drug, either cocaine or heroin, was not
dispositive. Rather, the dispositive issue was the presence of either cocaine or heroin
within the mixture found in the sweatshirt. In concluding that the mixture at issue
contained both cocaine and heroin, the appellate court relied on the testimony of the
State’s expert, Brandon Werry, the Director of the Ohio State Highway Patrol Crime Lab
who performed the analysis on and weighed the mixture. Mr. Werry testified that the
mixture contained both cocaine and heroin and weighed 100.07 grams. Exhibit 14 to
Return of Writ, Tr. 116-130. Cross-examination did not produce any contradictory
testimony.
This Court is bound to follow Ohio courts with respect to the correct construction
of the statutory language at issue. See White v. Steele, 602 F.3d 707, 711 (6th Cir.
2009)(“When reviewing habeas claims by state prisoners, federal courts may not
reinterpret state law”). Consequently, this Court must accept the proposition adopted
by the court of appeals that it is the presence of the drug - in this case, cocaine and
heroin - and not the specific amount of the drug at issue, that controls for purposes of
the penalty enhancing provisions of R.C. §2925.11(C). The court of appeals’ conclusion
that there was evidence from which a reasonable jury could have found that the
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mixture contained both cocaine and heroin, is supported by Mr. Werry’s testimony,
which if believed established exactly that fact. Further, there was testimony, again
from Mr. Werry, supporting the court of appeals’ conclusion that the substance
weighed 100.07 grams. At a minimum, this court cannot say, as it would be required to
do if petitioner were to prevail on this issue, that the state court unreasonably applied
the Jackson test here. Consequently, petitioner’s claim provides no basis for habeas
corpus relief.
This is so despite petitioner’s attempt in his traverse to pursue a slightly different
angle on the sufficiency of the evidence issue. Petitioner argues, relying on State v.
Gilliam, 192 Ohio App.3d 145 (2d Dist. 2011), that there was insufficient evidence to
demonstrate that the mixture at issue weighed 100.07 grams because, he contends, the
plastic weighing trays and the baggie containing the mixture were included in the
weight. In Gilliam, the state appellate court concluded that the jury verdict finding that
the defendant had purchased 1,000 grams of cocaine was against the manifest weight of
the evidence where testimony indicated that the cocaine was weighed while wrapped in
packaging secured with duct tape. The court of appeals found that the “jury necessarily
speculated” to determine the weight of the cocaine itself. Gilliam is of no help to the
petitioner here. First, the Gilliam court correctly construed the issue as one involving
the manifest weight of the evidence and such a claim is not cognizable in a federal
habeas proceeding. See Walker v. Engle, 703 F.2d 959, 969 (6th Cir. 1983). Further, even
assuming that this Court could consider such an issue, there is no evidence to support
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petitioner’s position that the weight of 100.07 grams included the weight of the trays
and the baggie.
RECOMMENDED DISPOSITION
For all the foregoing reasons, the Magistrate Judge RECOMMENDS that
petitioner's claims be DISMISSED.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within
fourteen days of the date of this Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s). A judge of this Court shall
make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. Upon proper objections, a
judge of this Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review
the Report and Recommendation de novo, and also operates as a waiver of the right to
appeal the decision of the District Court adopting the Report and Recommendation. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

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/s/ Terence P. Kemp
United States Magistrate Judge

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